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T.A.M Damiari Esq*

ABSTRACT

The plight of Persons living with Disabilities and HIV/AIDS as vulnerable groups in the world of work remains a recurring event  despite legislative and judicial interventions. This work briefly examined anti-discrimination instruments and judicial interventions against the backdrop of contemporary issues regarding the rights of Persons living with Disabilities and HIV/AIDS at the workplace.

Key Words: Vulnerable groups, disability, HIV/AIDS, discrimination, reasonable accommodation, and vocational rehabilitation.

INTRODUCTION

The United Nations and its agencies such as the International Labour Organization, Joint United Nations Programme on HIV/AIDS (UNAIDS) have made efforts in addressing concerns of Persons living with Disabilities (PLWD) and Persons living with HIV/AIDS (PLWHA) at the workplace. Municipal and regional frameworks with case law interventions have complemented the above effort, which has now expanded the legal jurisprudence on anti-discrimination in the world of work. It is against this background that this research discusses the Nigerian response to contemporary issues on the rights of PLWD and PLWHA

1.0 …………DEFINITION AND EXAMINATION OF KEY

i. Models of Disabilities.  Over the years, writers[1] identified several models as responsible for the treatment of PWDs.  The models are charity, biomedical, economic and socio-political models.

ii. Reasonable Accommodation. The principle of reasonable accommodation espouses the modification and adjustment of a job application process or a work environment to enable a qualified individual with a disability to be considered for available jobs.[2]

iii. Vocational Rehabilitation.[3] Vocational Rehabilitation means programs designed to restore or develop the capabilities of people with disabilities to secure, retain and advance in suitable employment – for example, job training, job counselling, and job placement services.

2.0……..LEGISLATIVE FRAMEWORK

2.1………Municipal Legislation – Federal  Laws

    The legislations in this regard, are:

i. The Constitution of the Federal Republic of Nigeria (as amended), 1999 (CFRN). Despite provisions on equality and non-discrimination, the Constitution[4] was visibly silent on anti-discrimination for PWDs and PLWHA.  The provision of section 42 listed prohibited grounds of discrimination, to wit, ethnic group, place of origin, sex, religion and political opinion, thereby fixing a closed category of prohibited grounds. The absence of clear-cut provisions in the Constitution gave room for uncertainties. Consequently, the courts were reluctant to expand the scope of the provision beyond those prohibited grounds.

ii. There are federal legislations in this regard:

a. Discrimination Against Persons with Disabilities (Prohibition) Act, 2018.

b. National policies on HIV/AIDS. There are has been series of National policies on HIV/AIDS.

c. The HIV/AIDS (Anti-Discrimination) Act, 2014.

2.2    STATE LAWS.

Some States of the federation such as Lagos, Ekiti, Plateau, Bauchi, Nasarawa, Kwara, Cross Rivers and Enugu States have enacted anti-discrimination laws for PWDs. Also for PLWHA, Kaduna, Nasarawa, Benue, Cross River, Enugu, Ogun and Lagos States have equally enacted laws.

3.0 ……..CASE LAW INTERVENTION

i. Narrow and restrictive approach by Nigerian Courts on Rights of PWDs and PLWHA

The earlier approach of the Nigerian courts in the interpretation of provision of Section 42 of the CFRN was restrictive, as the provision did not include either the grounds of health or disability as a prohibitive ground.[5] Consequently, the approach by the courts[6] in the interpretation of section 42 CFRN during this period was fraught with inconsistency or rigidity. The restrictive approach of the Nigerian courts in interpreting and applying section 42 CFRN came to a climax in the case of Festus Odaife & Others v Attorney General of the Federation & Others[7] where the Court held inter alia that denial of treatment to the applicants who are HIV positive while it may constitute inhuman and degrading treatment did not amount to an act of discrimination as envisaged by section 42 of the Constitution.

3.2.      Expansive and purposeful approach by the Nigerian courts on Rights of PWDs          and PLHA

In Emmanuel Ejiogu Onuhikemi v. Smridu Nigeria Limited[8] the court relied on Section 42 CFRN to hold that the action of the Defendant in sacking the Claimant due to his HIV status was discriminatory. The above case represents a radical departure from the harshness of the Odaife case.

Today, the liberal approach has been followed by Nigerian courts[9] and this is in line with recent trends[10] from jurisdictions such as South Africa, Namibia, Australia, Canada, and India.

4.0 ……..INTERNATIONAL INTERVENTIONS AND FRAMEWORK

i. The International bill of rights made provision against discrimination on several grounds.  

ii. African Regional Intervention. Articles 2 and 3 of the African Charter on Human and Peoples’ Rights[11] 1981 is the African continent’s response to discrimination[12] of persons.  

iii. Convention on the rights of persons with disabilities (CRPD) 2006. This is an all-encompassing instrument to protect the rights of PWDs at workplace and other wise. Contains salient provisions inter alia on vocational rehabilitation, privacy and confidentiality of information on PLWHA at workplace and otherwise.[13]

ILO Interventions PLWHA through its numerous instruments such as Voluntary Code of Practice on HIV 2001 and HIV/AIDS Recommendation, 2010 (No. 200), UN  Political Declaration on HIV and AIDS 2016, is highly commendable.

iv. UNAIDS Intervention.  The UNAIDS has been very visible in the wake of covid-19 in advocating for the protection of PWLHA at the work place through its several policy documents.[14]

4.1 ………INTERVENTIONS DURING COVID-19 PANDEMIC

           In the reality posed by covid-19, ILO and UNAIDS respectively issued several directives and policy papers on the protection of these vulnerable groups, who       were regarded as highly exposed by reason of their status.

4.2 ……..OTHER INTERNATIONAL INTERVENTIONS IN FAVOUR OF PWDs

i. World Intellectual Property Organization (WIPO). The intervention of UN self-funding agency such as the World Intellectual Property Organization (WIPO) through its Marrakesh Treaty is commendable.

ii. Accessible Books Consortium (ABC). This is a multi-stakeholder initiative led by WIPO. The aim is to increase the number of books worldwide in accessible formats (braille, audio and large print) and make them available to people who are blind, visually impaired or otherwise print disabled.

5.0 ………RECOMMENDATIONS

In the face of perennial challenges faced by these vulnerable groups, particularly, in the reality of Covid-19 pandemic, it is recommended that UN considers an Additional protocol to CRPD to include specific roles for disability and activist groups in the monitoring and implementation of CRPD.  The need to enforce the litany of legislations and instruments remains paramount. There is need for awareness programmes, reasonable accommodation and constant provision of vocational rehabilitation and amendment of section 42 of the CFRN to include the phrase “other status” as a prohibited ground in line with the International bill of rights and ACPHR. 

6.0………CONCLUSION

        The protection of the rights of persons living with disabilities and HIV/AIDS remains a collective goal. There is need for Nigeria to drive a genuine and comprehensive national policy towards the protection of these vulnerable groups, to ensure public and private sector participation.  The provision of reasonable accommodation, vocational rehabilitation, awareness programmes, is inevitable in addressing the several challenges of these vulnerable groups at the workplace.

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*LL.B (Hons), B.L. Practice Manager, ASALAW LP. E-mail – michael.damiari@asalawpractice.com

[1] Lynk, S. Michael, “Disability and Work: The Transformation of the Legal Status of Employees with Disabilities in Canada,”p191, available at https://papers.ssrn.com/sol3/papers.cfm?abstract_id=1068403, last accessed June 6, 2021.See also Liachowitz, Claire H. Disability as a Social Construct: Legislative Roots. (University of Pennsylvania Press, 2010) p3 and B. Doyle, ―Employment Rights, Equal Opportunities and Disabled Persons: The Ingredients of Reform‖ (1993) 22 Industrial Law Journal p.89 

[2]  Reasonable Accommodation Law and Legal Definition, (https://definitions.uslegal.com/r/reasonable-accommodation/) assessed June 10, 2021. See Articles 2 and 5(3) of the United Nations Convention on the Rights of Persons with Disabilities (CRPD) 2006.

[3] The need for vocational rehabilitation and training was emphasized in the Vocational Rehabilitation and Employment (Disabled Persons) Convention (No. 159) and Recommendation (No. 168), but Nigeria is yet to ratify the convention.

[4] See sections 17 (2)(a), 17 (3) (a), (f) CFRN. Sections 6(6)(b) and 6(6)(c) of the CFRN made provisions in chapter 2 non-justiciable. See Archbishop Okogie v Attorney General Lagos State (1981) 2 NCLR 3-7.

[5] See Uzoukwu v Ezeonu II (1991) 6 NWLR (Pt.290) 70.

[6] See the cases of Simeon Ilemona Akubo v First City Monument Bank Suit no. ID/824M/09 (unreported), decided by the High Court of Lagos State of Nigeria, Simeon Ilemona Akubo v Diamond Bank  Suit no. ID/763M/2010 (unreported), decided by the High Court of Lagos State of Nigeria and Mrs. Georgina Ahamefula v Imperial Medical Centre & Anor Suit no. ID/1627/2000(unreported), decided on September 27, 2012, by the Lagos High Court, per Hon. Justice Y.O Idowu.

[7] [2005] CHR 309; (2004) AHRLR 205 (NgHC 2004)

[8] Suit NICN/LA/265/2015 (unreported) decided by the National Industrial Court (Lagos Judicial division) on July 15, 2016, per Hon. Justice O.A Obaseki Osaghae.

[9] Adeyemo Ayodele Omoniyi & 2 Ors v UNILAG Suit no. NICN/LA/426/2016 (unreported) delivered by NICN Lagos division per Hon. Justice B. B Kayinp PhD (as he then was), now President of the NICN. See also Mr. X v Mr. Jacobus Brink & 4 Ors Suit no. NICN/ABJ/464/2016 (unreported) decided by NICN Abuja division on September 26, 2019 per Hon. Justice E.N Agbakoba

[10] See Hoffman v. South African Airway (2001)1(10) BHRC, 57, Nanditume v. Ministerof Defence Case No. ILC 24/98 Labour Court of Namibia (2000), X v. The Commonwealth (1999) HCA 63, 2 Dec, B53, 1998, Fountaine v. Canadian Pacific Ltd (1989)29 CCEL and X v. Y Corp & Anor X v. Y Corp & Anor (2002) 2 CHR p. 235 at p. 289.

[11] The African Charter on Human and Peoples‘ Rights (ACHPR)1981

[13]ibid, Articles 1, 5, 27

[14] UNAIDS, “UNAIDS calls on governments to strengthen HIV-sensitive social protection responses to the COVID-19 pandemic,” <https://www.ilo.org/wcmsp5/groups/public/—dgreports/—gender/documents/publication/wcms_755579.pdf, assessed June 10, 2021.