UNCOMMON LAW:How will the disabled vote?

As election season approaches, INEC has not made any arrangements for reasonable participation by disabled people, whether as voters or as candidates.

Nigeria is a party to the African Charter on Human and Peoples' Rights. Article 18(4) entitles the disabled to "special measures of protection in keeping with their physical or moral needs." Article 13 secures the right of every citizen, including of course disabled citizens, to political participation, as well as access to public property, facilities, services and utilities.

In jurisprudential terms, rights correlate with duties. For example, a disabled person's right to freedom of movement as ordained in section 41 of the Constitution and article 12 of the African Charter triggers a duty on the part of the state to proactively facilitate such movement by means of "special measures". Again, a disabled voter's right to special measures and political participation as enshrined in articles 13 and 18(4) of the African Charter generates a duty, not discretion, on INEC and other appropriate authorities and persons to assemble and install the necessary infrastructure and amenities to ease disabled voting.

Now, section 57(2) of Nigeria's Electoral Act purports to allow INEC discretion to "take reasonable steps to ensure that voters with disabilities are assisted at the polling place"; meaning, INEC has essentially no responsibility to do anything in this regard.

Jurisprudence and Nigerian judicial authority establish that international legal instruments like treaties to which a state is party override national law. Our partners in the African Charter are entitled to assume that all of its provisions operate in Nigeria. It would be completely untenable if state members of an international treaty were free to evade its clauses by enacting or resorting to contrary legislation.

By failing to impose a duty on INEC to facilitate disabled voting, section 57 of the Electoral Act clashes with articles 13 and 18(4) of the African Charter.

The African Charter must overwhelm our municipal law. Should INEC continue to neglect to make adequate provision for full participation in the electoral process by persons with disabilities, INEC would be in violation of those persons' Charter rights. For such a wholesome breach, any of the affected citizens can sue INEC at the Federal High Court using the Fundamental Rights enforcement mechanism.

Meanwhile, INEC has taken no step to exercise its alleged "discretion" in the interest of disabled voters. The codified "discretion" is an illicit attempt to pre-rig disabled voters out of the electoral process. Disadvantaged groups like disabled people tend to vote progressively. PDP knows this, and being a retrogressive party, cruelly disenfranchised the disabled to boost PDP's chances of electoral victory in a post-rigging Nigeria.

Legal action is therefore necessary to clarify that by virtue of the African Charter INEC has an obligation, not discretion, to install the necessary apparatus to facilitate disabled participation in elections. Simultaneously, the suit should compel INEC to perform its duty to the disabled.

There ought to be enhanced and dignified access to, and active assistance at polling stations for disabled voters. For instance, the booths ought to be accessible by wheelchair.

Section 57 of the Electoral Act should be amended to plainly impose a duty on INEC to furnish easy access for disabled voting. Even before or without the amendment, and without waiting to be sued, INEC should by regulation stipulate detailed provisions to advance this aspect of political participation by a large number of Nigerian citizens.

Because, or indeed, irrespective of its incorporation into Nigerian municipal law, the African Charter creates a statutory duty on INEC to set up the necessary administrative machinery to enable disabled Nigerians realise and exercise their voting rights.

The cited African Charter provisions are in tandem with several clauses of our as-yet non-justiciable Fundamental Objectives and Directive Principles of State Policy implanted in Chapter II of the Constitution. Section 14(2) (c) declares that "the participation by the people in their government shall be ensured".

Section 15(4) mandates the Nigerian state to "foster a feeling of belonging and of involvement among the various people of the Federation, to the end that loyalty to the nation shall override sectional loyalties." Discrimination against disabled Nigerians perpetrates their unlawful exclusion from a vital component of the political process, thus assaulting their "sense of belonging and of involvement", undermining their loyalty to the nation, and unhealthily accentuating their sectional loyalty inter se.

We need to conduct a disability-sensitive audit of our statute books, followed by a modification of numerous wicked laws that tacitly violate the rights of physically challenged persons in Nigeria, to bring those laws into harmony with 21st century human rights jurisprudence.