A call for an adequate legal and institutional framework in the protection and inclusion of children with mental/ developmental disabilities in Nigeria

Author: Busayo Oladapo
Kenna Partners Associate, Nigeria

According to a report by the United Nations Children’s Fund (UNICEF), between 93 and 150 million children live with a disability worldwide. The World Health Organisation (WHO) also reports that there are 7 million children with disabilities in Nigeria. With the emergence of the United Nations Convention on the Rights of Persons with Disabilities 2006, the scope of disabilities has expanded to include persons with mental, intellectual or sensory impairments. Despite the almost universal ratification of the Convention on the Rights of the Child (CRC) and the Convention on the Rights of Persons with Disabilities (CRPD) which reiterate the inalienable rights of children, children with disabilities and their families all over the world are continually confronted with daily challenges that compromise the enjoyment of their human rights, Nigeria inclusive. With the global rise in the number of children with developmental disabilities, the implication is that in the coming years, a significant number of young adults globally would be individuals with one form of mental/ development disability or the other. Therefore, it is imperative for state parties to be more intentional about the protection and inclusion of children with developmental/mental disabilities for better integration into the society.

The CRPD provides that children with disabilities must enjoy their full rights like other children and be allowed to express their views and opinions without any form of discrimination. It also mandates state parties to ensure the protection of the rights of children with all forms of disabilities including mental/ developmental disabilities.

The protection and inclusion of children with mental/developmental disabilities has received judicial pronouncements in the United States of America and the United Kingdom. In C & C v The Governing Body of a School, the Secretary of State for Education (First Interested Party) and the National Autistic Society (Second Interested Party) (SEN) [2018] UKUT 269 (AAC), the Upper Tribunal Administrative Appeals Chamber in the UK ruled as discriminatory, the exclusion of a student from school due to a tendency towards violence that was caused by his autism. This implies that in the UK, children with disabilities cannot be excluded from school simply because their disability makes them exhibit ‘anti-social’ behaviour. Also, in Endrew F. v. Douglas County School Dist. RE-1 137 S. Ct. 988;197 L.Ed. 2d 335, the United States Supreme Court in 2017 held that under the Individuals with Disabilities Education Act (IDEA) schools must provide students with education that is “reasonably calculated to enable a child make appropriate progress in light of the child’s circumstances.

With respect to the protection of children with mental/ developmental disabilities in Nigeria, it is imperative to note that Nigeria ratified the Convention on the Rights of a Child in 1991 and the Convention on the Rights of Persons with Disabilities (CRPD) in March 2007 and its Optional Protocol in September 24, 2010. Consequently, the Discrimination Against Persons with Disabilities (Prohibition) Act, 2018 which is applicable in all states of the federation, was enacted for the protection of persons with disabilities in Nigeria. The Act criminalises discrimination on the basis of disability with a fine of NGN100,000 or a term of 6 months imprisonment to anyone that violates the law.

Whilst the enactment of this Act is laudable, its successful implementation has been hampered in light of the fact that the National Commission for Persons with Disabilities is yet to be established despite the express provision for its creation in the Act. This shortcoming makes implementation and enforcement of the law very difficult, if not impossible. Another challenge with this Act is that it speaks more of physical disabilities than other forms of disabilities. Furthermore, there is no institutional framework for the protection and inclusion of children with mental/developmental disabilities in Nigeria. In addition, there remains inadequate judicial authorities upholding the need for the protection and inclusion of children with mental/developmental disabilities in Nigeria.

In light of the foregoing challenges and shortcomings of the current legal and institutional framework for the protection and inclusion of children with mental/ developmental disabilities in Nigeria, it is recommended that the National Assembly and state Houses of Assembly should enact laws which are targeted at the protection and inclusion of children with disabilities in Nigeria. To achieve this, civil society organisations should sensitise stakeholders and key legislators on the importance of  a legislative framework for the protection of children with mental/developmental disabilities  Also, the Federal Government should establish institutions for the protection of children with mental/ developmental disabilities and facilitate access to quality education and medical care for children living with mental/ developmental disabilities through community-based programmes for early detection and provision of support services for children with mental/ developmental disabilities and their families. Furthermore, civil society organisations and parents/ guardians of children whose rights have been infringed upon, should approach the courts for protection by instituting actions for the enforcement of fundamental right. This would draw the attention of the courts to the issue, and provoke their judgment in this regard. Consequently, civil society organisations would play an active role by utilising the courts to enforce the rights of children living with mental/ developmental disabilities in the country. This has the benefit of improving Nigeria’s body of laws and jurisprudence on children living with disabilities. These recommendations, if adopted would ensure better protection and inclusion of children with mental/ developmental disabilities in Nigeria.

About the Author:

Busayo Oladapo is an Associate at Kenna Partners who specialises in the provision of legal advisory and company secretarial services to corporate clients in Nigeria. She advises top tier companies, businesses and organisations on legal and regulatory compliance in respective sectors. She also provides legal representative services to clients in the banking, oil and gas and telecommunication industry in Nigeria.  Busayo is passionate about children’s right and strongly advocates for institutional and legal reforms in the protection and enforcement of children’s right in Nigeria and the world. She graduated from the University of Lagos where she obtained her LL.B(Hons) and attended the Nigeria Law School, Abuja.