/
UNIVERSITY OF IBADAN
LAW JOURNAL
VOL. 6, MAY 2016
Articles
Consumer Protection and the Purchase of Real 
Property Pendente Lite under the Doctrine of 
LisPendens: The Consumer's Nightmare
Obumneme-Okafor, N .J. 1-31
Application of Principles of International Criminal 
Law in Combating Domestic Terrorism in Nigeria
BabalolaA beg unde 3 3 -5 7
Environmental Abusive Practices in Nigeria:
Causes and Effects
EdoghoghoEboigbe* AChioma Linda Dim 59 - 76
Finance and Functions of Local Government 
in Nigeria
O longM .A .& O kolochaU .E . 77-96
Addressing Concerns in the Control of 
Noise Pollution under National Environmental 
(Noise and Control) Regulations 2009
TolulopeOgboru  97-118
Creativity: Revitalising Nigeria's Historic Structural 
Heritage through the 1972 UNESCO Convention
Afolasade A . Adewumi 119- 136
Protection of the Nigerian Environment: Legal 
and Critical Analysis of Laws and Regulations
Irene AirenAigbe Emmanuel CbibuzorAkpeme  137-163
A Legal Appraisal of the International 
Capital Market
Olubisi F. Oluduro  165 -  200
Is-my body my property? An examination of 
Property Rights Issues in human tissue and 
Biobanking Research
Simisola O. Akintola  201 -  228
A Review and Call for Domestication of the 
United Nations Convention on the Rights of 
Persons with Disabilities in Nigeria
Akinbola B. R. 229 - 252
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University o f  Ibadan Law Journal
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University o f  Ibadan Law Journal iii
Contents
Page
Editorial Board/Editorial Committee
Guide to Authors
Editorial
Consumer Protection and the Purchase of Real 
Property Pendente Lite under the Doctrine of 
Lis Pendens: The Consumer’s Nightmare 
Obumneme-Okafor, N.J. 1-31
Application of Principles of International Criminal 
Law in Combating Domestic Terrorism in Nigeria 
Babalola Abegunde 33-57
Environmental Abusive Practices in Nigeria:
Causes and Effects
Edoghogho Eboigbe* & Chioma Linda Dim 59-76
Finance and Functions of Local Government 
in Nigeria
Olong M. A. & Okolocha U. E. 77-96
Addressing Concerns in the Control of 
Noise Pollution under National Environmental 
(Noise and Control) Regulations 2009 
Tolulope Ogboru 97 -118
Creativity: Revitalising Nigeria’s Historic Structural 
Heritage through the 1972 UNESCO Convention 
Afolasade A. Adewumi 119-136
Protection of the Nigerian Environment: Legal 
and Critical Analysis of Laws and Regulations 
Irene Airen Aigbe Emmanuel Chibuzor Akpeme 137 -163
UNIVERSITY OF IBADAN LIBRARY
IV University o f  Ibadan Law Journal
A Legal Appraisal of the International 
Capital Market
Olubisi F. Oluduro 165 - 20C
Is my body my property? An examination of 
Property Rights Issues in human tissue and 
Biobanking Research
Simisola 0. Akintola 201 - 228
A Review and Call for Domestication of the 
United Nations Convention on the Rights of 
Persons with Disabilities in Nigeria
Akinbola B. R. 229 - 25:
UNIVERSITY OF IBADAN LIBRARY
University of Ibadan Law Journal
A Review and Call for Domestication of the United 
Nations Convention on the Rights of Persons with 
Disabilities in Nigeria
Akinbola B. R .* 1
Abstract
The Convention on the Rights o f Persons with Disabilities (CRPD) has 
been rated the most widely subscribed United Nations (UN) instrument 
within a short time after it was adopted in 2006. As at October 2012, 
the CRPD had been ratified by 125 countries including Nigeria. The 
high level o f acceptance and eagerness o f many countries to adopt the 
CRPD shows that the CRPD was a something the global community 
had been waiting for. It is also indicative that there had been a wide 
spread shift in the paradigm o f understanding o f the concept o f 
disability as well as the human right status o f persons with disabilities 
(PWDs). The high level o f participation in negotiating the CRPD 
marked a definite break from previous approaches that did not pay 
attention to the rights o f PWDs. The article adopted the content 
analysis research method. It started with a theoretical background and 
then x-rayed the text o f the CRPD, bringing to the fore, unique 
provisions, including 'reasonable accommodation’ which meets the 
specific needs that may arise from disability and which may need to be 
met before some PWDs can fully exercise their rights. Universal 
Design, which is both needful and economical, is also a unique concept 
in the CRPD (such as the provision o f a ramp instead o f a stair case).
It concludes that Nigeria's domestication o f the CRPD is both fo r its 
benefit and an obligation under section 12 o f the 1999 Constitution o f 
the Federal Republic o f Nigeria (as amended).
Akinbola B. R.1 Department of Jurisprudence and International Law,
Faculty of Law, University of Ibadan, Ibadan
1 Paragraph g of the Preamble to the United Nations Convention on the Rights of 
Persons with Disabilities and Optional Protocol. It provides thus: “(g) 
Emphasizing the importance of mainstreaming disability issues as an integral 
part of relevant strategies of sustainable development, . . . ”
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230 A Review and Call for Domestication of the United...
Introduction
Non-discrimination and inclusiveness are key ingredients of 
development in any human society and therefore, no segment of 
society ought to be left out in the planning and execution of 
development2. However, persons with disabilities (PWDs) have 
not been active participants in development in Nigeria in the past, 
even though global trend points in the direction of inclusiveness of 
PWDs. On the global scope, Wolfelsohn has observed that there is 
increasing recognition of the fact that bringing people with 
disabilities into the development mainstream will significantly 
affect any plan to cut poverty in the developing world3, especially 
because disability affects not only the individual, but also the 
family and the society at large. On the regional scope, previous 
efforts to put disability in the forefront of the development agenda 
in Africa, has been rated not to have yielded all the expected 
results, as a result of poor resources, blamed partly on the lack of 
commitment on the part of governments4. The United Nations 
Convention on the rights of Persons with Disabilities (CRPD) 
2006, therefore seeks to provide for comprehensive protection for 
the rights of persons with disabilities as a standard international 
instrument, which can guide municipal governments and even be 
adopted as a domestic legislation in order to protect the rights of 
their citizens with disabilities. The CRPD recognizes the 
wholeness of human rights and acknowledges that human rights 
are universal, indivisible, interrelated, and interdependent5. Thus,
2 Paragraph g of the Preamble to the United Nations Convention on the Rights of 
Persons with Disabilities and Optional Protocol. It provides thus: “(g) 
Emphasizing the importance of mainstreaming disability issues as an integral 
part of relevant strategies of sustainable development, . . . ”
’ Wolfensohn, J.D. (2003) Poor disabled and shut out. Washington Post, 3 
December, in Amusat, N. 2009. Disability Care in Nigeria: The need for 
professional advocacy, AJPARS Vol. 1, No. 1, pp. 30-36 at p. 30 -31.
4 Mji, G., MacLachan, M., Melling-Williams, N. and Gcaza, S. (2009) Realizing 
the rights of disabled people in Africa: an introduction to the special issue. 
Disability and Rehabilitation 31, pp.1-6, in Amusat, N. Ibid
5 Paragraph c of the Preamble to the United Nations Convention on the Rights of 
Persons with Disabilities and Optional Protocol. It provides thus: “(c)
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University o f Ibadan Law Journal 231
all human rights are to be accorded to all human beings, including 
those with disabilities, without any discrimination6. Disability can 
be in various forms and degree in terms of their “disabling” effect 
on the individual, depending on the type and extent. This article is 
in five parts, including the introduction. The second part examines 
the classifications of disability, the third part is an overview of the 
international Convention on the rights of persons with disabilities 
and its optional protocol while the fourth part examines the the 
CRPD within the context of the law in Nigeria and the need for 
Nigeria to legislate or adopt the CRPD 2006 as a way of 
domesticating it within the Nigerian legal framework. It is 
concluded in the fifth part by a recommendation that the CRPD 
2006 should be adopted as a national law which reflects global 
standards.
Classification of Disability
Disability is not a homogenous experience but comprises of varied 
experiences, ranging from physical to mental and psychological 
challenges. Every one of the different types of disability can be a 
limiting factor to a person’s ability to function, unless the 
environment is made friendly or compliant. Though the various 
classes of disability will be briefly highlighted here, it is noted that 
physical disability is usually the most visible.
Locomotor Disability: This is defined as the person’s inability to 
execute distinctive activities associated with moving both himself 
and the objects, from place to place and such inability resulting 
from affliction of musculoskeletal and/ or nervous system. Some
Reaffirming the universality, indivisibility, interdependence and 
interrelatedness of all human rights and fundamental freedoms and the need 
for persons with disabilities to be guaranteed their full enjoyment without 
discrimination, . . . ”
^Paragraph h of the Preamble to the United Nations Convention on the Rights of 
Persons with Disabilities and Optional Protocol. It provides thus: “(h) 
Recognizing also that discrimination against any person on the basis of 
disability is a violation of the inherent dignity and worth of the human person,
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232 A Review and Call for Domestication of the United...
common conditions giving rise to locomotor disability could be 
poliomyelitis, cerebral palsy, autism, amputation, injuries of spine, 
head, soft tissues, fractures, muscular dystrophies etc.7
Visual Disability: Visual Disability or Blindness refers to a 
person’s inability to see either fully or partially. A visually 
disabled person is also known to be suffering from visual 
impairment.
Low Vision or Poor Eye Sight: A person with low vision or poor 
eyesight is one who continues to have the problem even after going 
through medically approved corrective measures. This person with 
poor eyesight is still in a position to continue his tasks with 
appropriate assisted devices8.
Mental Illness: This includes both mental ill health and 
retardation. Mental retardation is defined as a state of arrested or 
incomplete development of the mind, which is specially 
characterized by impairment of skills manifested during the 
development period which contribute to the overall level of 
intelligence, i.e., cognitive language, motor and social abilities. On 
the other hand, mental ill health comprises of schizophrenia, 
anxiety disorder and depressive disorder or any other problem, 
which is caused due to series of chemical changes in the brain9.
Speech and Hearing Disability: Speech and Hearing Disability is 
referred to as a condition wherein the person is incapable of 
speaking and hearing any sound10.
Learning Disability: It is a disorder, which affects the basic 
psychological processes of understanding or using written or
7 Leni Chaudhuri Disability in India Issues and Concerns, Ess Conference 
Paper, May, 2006, pp.3 - 4.
8 Ibid.
* Ibid.
■o rA.w
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University of Ibadan Law Journal 233
spoken language. This disorder affects development of language, 
speech, and reading and associated communication skills needed 
for social interaction.
Conditions such as brain injury, minimal brain dysfunction, 
dyslexia, and developmental aphasia are examples of learning 
disabilities11.
Multiple Disabilities: A combination of two or more disabilities12 13, 
namely Blindness/low vision Speech and Hearing impairment 
Loco motor disability including leprosy, Mental retardation and 
Mental illness could occur in an individual, who is then said to 
have multiple disabilities.
The above mentioned disabilities all have the potential to 
limit a person affected by them. However, with the right approach, 
especially with observance of the laws on disability, PWDs should 
and can access and enjoy their human rights. It is therefore 
important to examine the CRPD which to date is the most 
comprehensive provision for the protection of the rights of PWDs, 
in terms of providing a legal global standard for the relationship 
between society and PWDs.
Overview of the International Convention on the Rights of 
Persons with Disabilities (CRPD)
The United Nations Convention on the Rights of Persons with 
Disabilities (the CRPD)1' was adopted on December 13, 2006 and 
entered into force on May 3, 2008. It constitutes a key instrument 
and landmark in the development of law. It is a critical milestone 
in the development of international law on the rights of persons 
with disabilities. The text of the CRPD comprises of 25 
preambular paragraphs and 50 Articles. Its Optional Protocol 
contains 18 Articles. The mandate of the Convention was disclosed 
within the Convention which was negotiated and adopted by the
11 Ibid.
12 As defined in clause (i) of section 2 of the Person with disabilities (Equal 
Opportunities, Protection of Rights and Full Participation) Act 1995
13 (Convention No. 106) 2006.
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234 A Review and Call fur Domestication of the United...
United Nations (UN). Rather than a new set of rights and 
obligations, what the General Assembly provided for in the CRPD 
was the elaboration of human rights within the context of disability 
and not the enumeration of any new rights14. Essentially, the 
CRPD did not create new rights, but contextualized the existing 
human rights provisions, making them applicable to PWDs. 
Nonetheless, the Convention has been described as a progressive 
development of existing human rights law by making them more 
realizable to PWDs.
The preamble of the CRPD, numbered from (a)-(y) is a 
lengthy 25 paragraphs back ground to the convention and it is 
explicit in its reference to equality and non-discrimination 
provisions that are contained in the United Nations Universal 
Declaration. It acknowledges human rights provisions contained in 
previous UN human rights instruments and recalls the International 
Covenant on Economic, Social and Cultural Rights, the 
International Covenant on Civil and Political Rights, the 
International Convention on the Elimination of All Forms of 
Racial Discrimination, the Convention on the Elimination of All 
Forms of Discrimination against Women, the Convention against 
Torture and Other Cruel, Inhuman or Degrading Treatment or 
Punishment, the Convention on the Rights of the Child, and the 
International Convention on the Protection of the Rights of All 
Migrant Workers and Members of Their Families in preamble (d). 
The preamble emphasizes the need for protection and promotion of 
the rights of PWDs, regardless of their gender, age, or any other 
status. It recognizes the importance of cooperation among 
countries for the purpose of protecting the rights of individuals 
with disabilities.
14 Comprehensive and Integral International Convention to Promote and Protect 
the Rights and Dignity of Persons with Disabilities, infra note 50; see also 
“Frequently Asked Questions Regarding the Convention on the Rights of 
Persons with Disabilities,” available at
<http://www.un.org/esa/socdev/enable/faqs.htm> (last visited August 17, 
2010).
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University of Ibadan Law Journal 235
The fundamental objectives of the CRPD are set out in its article 1 
as follow:
The purpose of the present Convention is to 
promote, protect and ensure the foil and equal 
enjoyment of all human rights and fundamental 
freedoms by all persons with disabilities, and to 
promote respect for their inherent dignity.
The full and equal enjoyment of human rights by PWDs is clearly 
the goal of the CRPD which though does not introduce entirely 
new rights, brings the basic existing human rights to the context of 
disability. Javaid described the preamble to the CRPD as unusually 
detailed, highlighting the principle of equality as contained in other 
human rights treaties, notably the International Convention on the 
Elimination of All Forms of Racial Discrimination, the 
International Convention on the Elimination of All Forms of 
Discrimination against Women, the Convention against Torture 
and other Cruel and Inhuman or Degrading Treatment or 
Punishment.
Although it would not have been out of place to do so, the CRPD 
does not provide a definition for disability, but simplifies it by 
listing the category of persons with disabilities thus:
Persons with disabilities include those who have 
long-term physical, mental, intellectual or sensory 
impairments which in interaction with various 
barriers may hinder their full and effective 
participation in society on an equal basis with 
others.
In terms of acceptance evidenced by subscription, the CRPD has 
been rated as the most widely subscribed UN instrument within a 
short time after it was adopted. As at October 2012, the CRPD had 
been ratified by 125 countries. The high level of acceptance and 
eagerness of many countries to adopt the CRPD is indicative of the 
fact the global community had been awaiting for the CRPD, an
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236 A Review and Call for Domestication of the United...
indication that there had been a wide spread shift in the paradigm 
of understanding of disability as a concept and the human right 
status of PWDs. By its adoption, the negative perception of PWDs 
was debunked and the CRPD makes it clear that PWDs are no 
longer to be seen: “as objects of charity, medical treatment and 
social protection”15, but as “subjects of rights”15 6.
The CRPD estimates of PWDs and definition of disability 
have impacted on the regional protection of PWDs also. In the 
European Union for instance, it has been estimated that one in six 
people - around 80 million - has a disability that ranges from mild 
to severe17. According to the Council of Europe Commissioner for 
Human Rights, this figure within the Council of Europe member 
states is between 10 and 15 percent of the population, i.e. between 
80 and 120 million people18. According to Jarlath, the wide range 
of impairments that fall within the term “disability”, make the 
definition more encompassing than the definitions which apply to 
any other vulnerable group19 20, which confirms the view that PWDs 
are the world’s largest minority group. Jarlath further stated that 
persons with disabilities include persons with physical, mental, 
examples of which include schizophrenia or bipolar disorder;
15 U.N. High Commissioner for Human Rights heralded the CRPD as a rejection 
of negative understanding of PWDs.
16 Declaration on the Rights of Mentally Retarded Persons, G.A. Res. 2856 
(XXVI), 26 U.N. GAOR Supp. (No. 29), at 93, U.N.Doc. A/8429 (Dec. 20, 
1971).
17 European Commission, European Disability Strategy 2010-2020: A Renewed
Commitment to a Barrier-Free Europe, SEC(2010) 1324 final, Brussels, 15 
November 2010, available at: http://eur-
lex.europa.eu/LexUriServ/LexUriServ.do?uri=SEC:2010:1324:FIN:EN:PDF.
IS Council of Europe Commissioner for Human Rights, Human Rights and 
Disability: Equal Rights for All, CommDH/IssuePaper (2008)2, Strasbourg,
20 October 2008, available at:
https://wcd.coe.int/wcd/ViewDoc.jsp?id=1355349&Site=CM.
IV Jarlath Clifford (2011). The UN Disability Convention and its Impact on 
European Equality Law, The Equal Rights Review, Vol. Six (11-25), 23.
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University of Ibadan Law Journal 237
intellectual, such as learning limitations caused by Down’s 
syndrome; and sensory impairments .
The text of the Convention itself, and the highly 
participatory process by which it was negotiated, marked a definite 
break from previous international approaches that focused on 
disability within a medical model framework. The CRPD embraces 
a social model of disability, in contrast to traditional approaches 
which concentrate the disability experience in individual 
deficiency, thus referring to PWDs as “disabled”, “handicapped” 
and the like. The condition of disability or inability was made more 
prominent than the person affected.
However, in the social model with a disability friendly 
constructed environment, the barriers that impede the participation 
of persons with disabilities in society, are removed or obliterated. 
As a result of the antecedent in locating disability within the 
medical model and the attendant human rights violations of 
treating disability as a health condition necessitating medical 
interventions, there are tensions between the medical model and 
the social model, which recognizes the rights of PWDs. Lord, et.al 
have noted that while the social model of disability is reflected in 
the Convention, the tensions between the framing of disability 
within a medical model and the conceptualization of disability as a 
social construction are not fully resolved by the Convention, 1 and 
that the unresolved tension will inevitably lead to some challenges, 
as well as opportunities, when considering the broader implications 
of the CRPD for global health governance201 2. Despite these 
challenges, from a health perspective for instance, it is clear that 
given the relevance of the CRPD to important issues of global 
health governance, the Convention may be regarded as a
20 Ibid.
21 Lord, Janet E., Suozzi, David & Taylor Allyn L. 2010. Lessons from the 
Experience of U.N. Convention on the Rights of Persons with Disabilities: 
Addressing the Democratic Deficit in Global Health Governance journal of 
law, medicine & ethics, global health governance. Pp 564-579 at 564-565.
22 Lord, Janet E., et.al., Id.
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238 A Review and Call for Domestication of the United...
significant breakthrough in efforts to democratize global health 
governance. There is no doubt that a path has been charted for the 
progressive development of international disability standards and 
the shift from a medical model of disability inherent in early 
instruments to a social model, which includes the understanding of 
disability from a human rights angle, which the Convention 
reflects23. An analytical review of the Convention’s structure and 
substantive content in a human rights context is therefore 
important.
The United Nations Convention on the Rights of Persons 
with Disabilities (the CRPD)24 constitutes a key landmark in the 
emerging field of global education law and a critical milestone in 
the development of international law on the rights of persons with 
disabilities (PWDs)25. At the time of its adoption, the U.N. High 
Commissioner for Human Rights heralded the CRPD as a rejection 
of the understanding of persons with disabilities “as objects of 
charity, medical treatment and social protection” and an embrace 
of PWDs as “subjects of rights.” The CRPD for instance, in its 
Article 1 provides that: “Persons with disabilities include those 
who have long-term physical, mental, intellectual or sensory 
impairments which in interaction with various barriers may hinder 
their fu ll and effective participation in society on an equal basis 
with others. ” The way the convention defines the term disability, is
23 Lord, Janet E., et.al. Id, p. 565.
24 United Nations Convention on the Rights of Persons with Disabilities (the 
CRPD) was adopted on December 13, 2006 and entered into force on May 3, 
2008.
25 The Convention on the Rights of Persons with Disabilities, G.A. Res. 61/106,
U.N. Doc. A/Res/61/106 (Dec.13, 2006) [hereinafter CRPD], An Optional 
Protocol was adopted at the same time, Optional Protocol to the Convention 
on the Rights of Persons with Disabilities, G.A. Res. 61/106, U.N. Doc. 
A/Res/61/106 (December 13, 2006) [hereinafter Optional Protocol], The 
CRPD text, along with its drafting history, resolutions, and updated list of 
signatories and States Parties is posted on the United Nations Enable website, 
Retrieved on July 2, 2010 from <http://www.
un.org/esa/socdev/enable/rights/convtexte.htm>
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University o f  Ibadan Law Journal 239
a deviation from the usual stereotypic historical view which is 
dominated by medicalization of disability. The historical perspectives 
make disability a medical problem rather than recognizing the human 
rights of persons affected. That model of disability has now shifted 
towards the social model understanding of disability and the CRPD is 
instrumental in this regard. The CRPD further recognizes some 
specific human rights of particular relevance in the context of 
disability, including but not limited to:
i The right to be protected from abuse, violence, and torture;
ii The right to live in the community, with one’s family, without 
being institutionalized against one’s will;
iii The right to have access to education, transportation, and 
other public services;
iv The right to access information and communication, including 
via sing language or Braille;
v The right to education;
vi The right to employment and a decent standard of living; and
vii The right to access social justice.
The CRPD provides for both civil and political rights as well as 
economic, social and cultural rights, while some of the rights are 
cross cutting as described.26 In a broad sense, the CRPD provides for 
civil and political rights in its articles 5 on equality and non­
discrimination; 10 on the right to life; 12 on the right to equal 
recognition before the law; 13 on access to justice; 14 on Liberty and 
security of person; 15 on Freedom from torture or cruel, inhuman or 
degrading treatment or punishment; 16 Freedom from exploitation, 
violence and abuse; 17 on Protecting the integrity of the person; 18 on 
Liberty of movement and nationality; 19 on Living independently and 
being included in the community; 20 on Personal mobility; 21 on
26A H u m a n R i g h t s - B a s e d A p p r o a c h t o D i s a b i l i t y i n D e v e  
1 o p m e n t, being a study produced jointly by Gesellschaft fur 
Internationale Zusammenarbeit (GIZ) GmbH, a federally owned enterprise, 
implementing development programmes on behalf o f the German 
Government, and CBM, a non-governmental organisation.
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240 A Review and Call for Domestication of the United...
Freedom of expression and opinion, and access to information; 22 on 
Respect for privacy; 23 on Respect for home and the family 
respectively.
Provisions on economic, social and cultural rights are 
contained in articles 24 to 29 of the CRPD as follow: articles 24 and 
25 on the rights to education and health respectively; 26 on the right 
to habilitation and rehabilitation; 27 on Work and employment; 28 on 
Adequate standard of living and social protection; while article 29 
provides for the right of Participation in political and public life.
Other provisions address various subjects like group rights of 
women and children in articles 6 and 7 respectively; article 11 
provides for the protection of PWDs in situations of risk and 
humanitarian emergencies; and article 32 provides that state parties 
should recognize the importance of international cooperation and its 
promotion, in support of national efforts for the realization of the 
purpose and objectives of the CRPD.
In terms of implementation, the protection of the right to 
education is examined here to exemplify the way the provisions of the 
CRPD operates in protecting the rights of PWDs, even though as 
earlier stated, the rights are not entirely new. There are two key 
elements that make the CRPD important in the context of education, 
namely: the text of the Convention itself, and the highly participatory 
process by which it was negotiated. These two factors brought about a 
definite break from previous international approaches that focused on 
disability within a medical model framework. In contrast to traditional 
approaches, the CRPD embraces a social model of disability, 
concentrating the disability experience not in the individual’s 
deficiency, but in the socially constructed environment and the 
barriers that impede the participation of PWDs in society. While the 
social model of disability is reflected in the Convention, the tensions 
between the framing of disability within a medical model and the 
conceptualization of disability as a social construction are not fully 
resolved by the Convention. It is submitted that there are tensions that 
are very difficult to resolve in reconciling human rights with certain 
types of disabilities. For instance, if a person suffers mental 
retardation and therefore learns at a much slower pace than his/her 
peers, would it be lawful to make the class learn at the speed of the 
mentally retarded person? On the other hand, would it be just for the
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University of Ibadan Law Journal 241
class to learn at the speed of those class members who do not suffer 
from mental retardation, leaving the mentally retarded behind? Or 
worse still, is it just to keep learners with mental retardation 
segregated and isolated from their learning peers, while teaching them 
at their own pace?
The unresolved tension will inevitably lead to some 
challenges, as well as opportunities, considering the broader 
implications of the CRPD for global education regulation. 
Notwithstanding the challenges, it is clear that viewing the relevance 
of the CRPD through the mirror of important issues of global 
education rights protection, the Convention may be regarded as a 
significant breakthrough in its efforts to democratize access to 
education for PWDs. It charts the progressive development of 
international disability standards and the shift from a medical model 
of disability inherent in early instruments to a social model, which 
embodies the rights-oriented understanding of disability reflected by 
the Convention. The CRPD’s contributions to the principle of 
participation in decision making through enhanced right of access to 
education remains one of its commendable attributes.
Furthermore, while the CRPD does not explicitly indicate 
what an inclusive education should look like, support documents from 
the UN shed some light on the UN’s interpretation of the concept. In 
the handbook for parliamentarians titled From Exclusion to 
Equality27, the UN proposes the following tenets of inclusive 
education:
i. Suitable equipment and teaching materials is provided;
ii. Teaching methods and curricula embrace the needs of all 
learners and promote social diversity;
iii. Teachers are trained to teach in a classroom of differentiated 
learners, and encouraged to support each other; and
iv. A full range of supports is provided by schools to meet the 
diverse needs of all students.
27 United Nations. 2007. Handbook for Parliamentarians on the Convention on 
the Rights of Persons with Disabilities and its Optional Protocol. From 
Exclusion to Equality: Realizing the Rights o f Persons with Disabilities. 
Geneva: United Nations.
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242 A Review and Call fo r  Domestication of the United...
The publication also suggests that inclusive philosophy should not be 
limited to curriculum and teaching, but that it is also helpful in 
thinking about physical accessibility within the school building and 
transportation to and from school.
The CRPD is an instrument purposely targeted at the 
protection of the rights of all people with disabilities, including 
children. It strengthens the shift from institutional care by recognizing 
the right of PWDs, to live in the community, backed up with the 
necessary support and community based services to make that 
possible. It requires that governments make every effort to ensure that 
when a family cannot care for a child, the alternative placement is 
either with the wider family or in a family setting in the community. 
An institution is not an acceptable option. Generally, “Disabled 
people are not only the most deprived human beings in the developing 
world, they also the most neglected”28. Discrimination against PWDs 
cuts across all spheres of human endeavours including education, 
politics, health provision, right to information and the right to work.
Thus the CRPD has introduced a profound shift in emphasis. 
It provides for equality by making equal recognition before the law as 
well as access to justice rights in the context of disability. This is 
important for the recognition and protection of other rights29. Equal 
recognition before the law has a multiplier effect on other rights and 
once there is locus standi, disability does not hamper the pursuit of 
justice according to law for PWDs.
The CRPD has brought innovation into the realization of its 
goals, by requiring state parties to take proactive measures30, by
28 Amartya Sen 1992, Mental Handicap Among Rural Indian Children. Sage 
Publications Limited. New Delhi.
29 Article 12 of the CRPD provides for equal recognition before the law.
30 Article 4 o f the CRPD which provides for general obligations, generally
commits state parties to take certain measures towards the realization of the 
protection of the rights o f PWDs within their jurisdictions thus:
1. States Parties undertake to ensure and promote the full realization of all 
human rights and fundamental freedoms for all persons with disabilities 
without discrimination of any kind on the basis o f disability. To this end, 
States Parties undertake:
(a) To adopt all appropriate legislative, administrative and other measures for 
the implementation of the rights recognized in the present Convention;
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providing for “reasonable accommodation”, a phrase it defines as 
follow:
Reasonable accommodation” means necessary and 
appropriate modification and adjustments not imposing 
a disproportionate or undue burden, where needed in a 
particular case, to ensure to persons with disabilities the 
enjoyment or exercise on an equal basis with others of 
all human rights and fundamental freedoms31
The concept of reasonable accommodation acknowledges the specific 
needs that may arise and which may need to be met before a person 
with disability can fully exercise his/her rights, but not in a derogatory
(b) To take all appropriate measures, including legislation, to modify or abolish 
existing laws, regulations, customs and practices that constitute 
discrimination against persons with disabilities;
(c) To take into account the protection and promotion of the human rights of 
persons with disabilities in all policies and programmes;
(d) To refrain from engaging in any act or practice that is inconsistent with the 
present Convention and to ensure that public authorities and institutions act 
in conformity with the present Convention;
(e) To take all appropriate measures to eliminate discrimination on the basis of 
disability by any person, organization or private enterprise;
(f) To undertake or promote research and development o f universally designed  
goods, services, equipment and facilities, as defined in article 2 o f the present 
Convention, which should require the minimum possible adaptation and the 
least cost to meet the specific needs o f a person with disabilities, to 
promote their availability and use, and to promote universal design in the 
development o f standards and guidelines;
(g) To undertake or promote research and development of, and to promote the 
availability and use o f new technologies, including information and 
communications technologies, mobility aids, devices and assistive 
technologies, suitable for persons with disabilities, giving priority to 
technologies at an affordable cost;
(h) To provide accessible information to persons with disabilities about mobility 
aids, devices and assistive technologies, including new technologies, as well 
as other forms o f assistance, support services and facilities;
(i) To promote the training o f professionals and staff working with persons with 
disabilities in the rights recognized in the present Convention so as to better 
provide the assistance and services guaranteed by those rights.
31 Article 2 o f the CRPD, 2006.
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sense. It places responsibility for making necessary modifications and 
provisions that will allow equal access to and the enjoyment of all 
human rights irrespective of their disability status.
Another concept which is uniquely welcome in the CRPD, is 
the Universal Design. It is both needful and economical. As the name 
suggests, universal design is one that will be usable both by PWDs as 
well as persons without disability. The provision of a ramp instead of 
a stair case for example, will be suitable for anyone to get to a high 
rise structure, but a stair case will only admit or accommodate those 
who climb without wheelchair. The CRPD defines it thus:
Universal design” means the design of products, 
environments, programmes and services to be usable by all 
people, to the greatest extent possible, without the need for 
adaptation or specialized design.
Universal design” shall not exclude assistive devices for 
particular groups of persons with disabilities where this is 
needed32.
The CRPD provisions concern themselves with issue of respect for 
the dignity of the human person, including the rights to liberty and 
security of persons; Freedom from torture or cruel, inhuman or 
degrading treatment or punishment; Freedom from exploitation, 
violence and abuse; Protecting the integrity of the person and Liberty 
of movement and nationality respectively33. For instance, it frowns at 
institutionalizing children with disabilities which involves removing 
them from public view and effectively rendering them invisible. That 
was an approach which identified the child as a 'problem' to be got rid 
of. The philosophy underpinning the CRPD encourages the removal 
of the social, physical, cultural, attitudinal and economic barriers that 
impede the realisation of rights not the removal of the child. In 
respect of the family, it requires that their resources and strengths are 
mobilised and supported to provide alternative care34. The CRPD
32 Article 2 o f the CRPD, 2006.
33 Articles 14, 15, 16, 17 and 18 of the CRPD respectively.
34 In addition, investment must be made in recruiting, training and supporting 
foster families who can provide a home for children, or establishing small
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adds an additional requirement that a child must never be separated 
from parents on the basis of disability35. The forced 
institutionalisation of children with disabilities represents a form of 
discrimination. It would not be acceptable to deny the liberty of other 
children on this basis. Article 14 of the CRPD introduces a 
requirement on Governments to ensure that people with disabilities, 
including children, are entitled to enjoy the right to liberty on the 
same basis as others. It also requires that any deprivation of liberty 
must be neither unlawful nor arbitrary and that the existence of a 
disability must never be used to justify the deprivation of liberty36.
In terms of its educational guarantee, article 24 CRPD on education 
provides as follow:
1. States Parties recognize the right of persons with disabilities to 
education. With a view to realizing this right without discrimination 
and on the basis of equal opportunity, States Parties shall ensure an 
inclusive education system at all levels and lifelong learning directed 
to:
(a) The full development of human potential and 
sense of dignity and self-worth, and the strengthening 
of respect for human rights, fundamental freedoms 
and human diversity;
(b) The development by persons with disabilities of 
their personality, talents and creativity, as well as
group homes where children can be cared for and participate fully within the 
local community.
35 This means, for example, that doctors, social workers, other professionals or
the courts must never impose a decision to place a child away from parents, 
simply because the child has a disability. Nor must they pressurise parents to 
agree to such a decision. The emphasis must be on providing for the child's 
needs within rather than away from the family.
36 The CRC stresses that children should never be removed from their parents
against their will, unless it is necessary for the best interests o f the child, for 
example, where the parents are subjecting the child to physical abuse or are 
neglecting him or her. In addition, removal from their family is a matter of 
extreme concern to children, and should never be undertaken without 
consulting them and taking their views seriously, in accordance with their 
age and maturity.
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their mental and physical abilities, to their fullest 
potential;
(c) Enabling persons with disabilities to participate 
effectively in a free society.
2. In realizing this right, States Parties shall ensure that:
(a) Persons with disabilities are not excluded from the 
general education system on the basis of disability, 
and that children with disabilities are not excluded 
from free and compulsory primary education, or from 
secondary education, on the basis of disability;
(b) Persons with disabilities can access an inclusive, 
quality and free primary education and secondary 
education on an equal basis with others in the 
communities in which they live;
(c) Reasonable accommodation of the individual’s 
requirements is provided;
(d) Persons with disabilities receive the support 
required, within the general education system, to 
facilitate their effective education;
(e) Effective individualized support measures are 
provided in environments that maximize academic 
and social development, consistent with the goal of 
full inclusion.
3. States Parties shall enable persons with disabilities to learn life and 
social development skills to facilitate their full and equal participation 
in education and as members of the community. To this end, States 
Parties shall take appropriate measures, including:
(a) Facilitating the learning of Braille, alternative script, 
augmentative and alternative modes, means and formats 
of communication and orientation and mobility skills, 
and facilitating peer support and mentoring;
(b) Facilitating the learning of sign language and the 
promotion of the linguistic identity of the deaf 
community;
(c) Ensuring that the education of persons, and in 
particular children, who are blind, deaf or deafblind, is
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delivered in the most appropriate languages and modes 
and means of communication for the individual, and in 
environments which maximize academic and social 
development.
4. In order to help ensure the realization of this right, States Parties 
shall take appropriate measures to employ teachers, including 
teachers with disabilities, who are qualified in sign language and/or 
Braille, and to train professionals and staff who work at all levels of 
education. Such training shall incorporate disability awareness and 
the use of appropriate augmentative and alternative modes, means and 
formats of communication, educational techniques and materials to 
support persons with disabilities.
5. States Parties shall ensure that persons with disabilities are able to 
access general tertiary education, vocational training, adult education 
and lifelong learning without discrimination and on an equal basis 
with others. To this end, States Parties shall ensure that reasonable 
accommodation is provided to persons with disabilities.
The CRPD puts responsibility on governments to ensure the 
implementation of the provisions made for the protection of the right 
to education of PWDs. This is important in the light of the 
vulnerability associated with being in a disabled condition where even 
persons without disabilities encounter many challenges in accessing 
education in Nigeria for instance.
It is however notable that such challenges like discrimination, 
are not peculiar to Nigeria. According to Jarlath for example, writing 
on The UN Disability Convention and its Impact on European 
Equality Law; he stated that in many European countries disabled 
persons are marginalised from political and legal decision-making 
processes because of the historical perception that they do not have 
the capacity to be involved and actively participate. The author cited 
examples of Belgium, Czech Republic, Germany, Ireland, Poland and 
Portugal, which exclude persons with mental health problems and 
persons with disabilities from the right to political participation37.
37 Jarlath Clifford, European Union Agency for Fundamental Rights, The Right 
to Political Participation of Persons with Mental Health Problems and
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This attests to the universality of discrimination against PWDs, 
particularly in the older models of the subject.
It is also important that both the CRC and the CRPD require 
that the best interest of the child should always be the paramount 
consideration. A child with disability needs to enjoy as much equality 
as possible with other children who have no disabilities in both the 
learning process as well as the classroom environment, unless it is 
practically impossible. Isolation or segregation of children with 
disabilities amount to discrimination In terms of implementation of 
the right to education, the school system has to decide to provide 
education for PWDs, and therefore require modifications of both 
curricula and infrastructure. Governments have to choose to cater for 
the needs of their citizens who have disabilities, (even if at an 
increased cost). It is also important that the PWDs themselves should 
be determined to integrate into the mainstream of society 
notwithstanding the discriminatory attitudes of other members of 
society and institutions in a number of ways. Success in combating 
disability based discrimination requires a multi-track approach in 
which the State, the PWDs and their associations, families of PWDs 
and the larger society must all see themselves as key actors. The 
CRPD provisions recognize this.
Also, Legal capacity38 and reasonable accommodation39 
which according to Jartath are either unique to disability or have been 
traditionally perceived as disability issues thereby presenting greater 
practical and conceptual difficulties to law and policy makers, have 
been made clearer by the CRPD. The CRPD has set clear and 
instructive standards which bind State Parties to adopt measures that 
improve the equality outcomes for persons with disabilities40.
Overview of the Optional Protocol on the Convention on the 
Rights of Persons with Disabilities (CRPD)
Persons with Intellectual Disabilities, October 2010, available at:
http://www.fra.europa.eu/fraWebsite/attachments/Report-vote-
disability_EN.pdf.
38 Art. 12, CRPD, 2006.
39 Art. 5 (3), CRPD, 2006.
40 See Jarlath op.cit., note 36 above.
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The optional protocol on the CRPD 2006 has a total of 18 articles 
which set out issues of concern for the protocol, including the 
disclosure of its purpose, which is to make State Parties recognize the 
competence of the Committee on the Rights of Persons with 
Disabilities (“the Committee”) to receive and consider 
communications from or on behalf of individuals or groups of 
individuals subject to its jurisdiction, who claim to be victims of a 
violation by that State Party of the provisions of the Convention41. 
The same article excludes the committee from exercising jurisdiction 
over communications submitted to it in respect of non-State Parties42. 
In article two, the protocol sets out conditions under which the 
committee will not entertain a communication, including when such is 
sent anonymously, constitutes an abuse of the right of submission of 
such communications or is incompatible with the provisions of the 
Convention43. Also, where the same matter has already been 
examined by the Committee or has been or is being examined under 
another procedure of international investigation or settlement, the 
committee will not entertain such to avoid duplication and a waste of 
resources on the same matter.
Other conditions where the committee may not entertain a 
communication are when all available domestic remedies have not 
been exhausted, a rule which shall not apply where the application of 
the remedies is unreasonably prolonged or unlikely to bring effective 
relief; where it is manifestly ill-founded or not sufficiently 
substantiated; or when the facts that are the subject of the 
communication occurred prior to the entry into force of the Protocol 
for the State Party concerned, unless those facts continued after that 
date44.
The Optional Protocol is the legal instrument that provides for 
obtaining remedies in cases of violation of the rights of PWDs. It 
gives the Committee on the Rights of Persons with Disabilities the 
power to address individual complaints of violations of all rights in
41 Art. 1(1), Optional Protocol on the Convention on the Rights of Persons with
Disabilities, 2006.
42 Art. 1(2), Ibid.
43 Art. 2, (b), Ibid.
44 Art. 2, (c)-(f), Ibid.
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the Convention. However, the individual must have first exhausted 
avenues at the national level for obtaining redress. To enjoy the 
benefits or be bound by the obligation therein, States parties to the 
Convention must individually sign and ratify the Optional Protocol in 
addition to their obligations under the CRPD. Only Parties to the 
Convention are allowed to be parties to the Optional Protocol. As at 1 
July 2008, there were 18 States parties to the Optional Protocol, 
which entered into force on 3 May 2008.
The Protocol and its provisions are necessary in order to give 
effect to the Convention and to translate it to an effective instrument 
which will ensure that PWDs enjoy their human rights. The CRPD 
will otherwise be a mere advisory document and at best, set standards 
which if State parties do not adhere to, the victims of violations under 
the CRPD will not be able to enforce. For the lofty goals of the CRPD 
to be fully realized, the Protocol is a necessary additional instrument.
The CRPD in the context of the Nigerian Legal Structure
Though disability is a universal phenomenon and is by no means 
peculiar to Nigeria, the country has its fair share of persons with 
disabilities. The World Health Organization (WHO) estimated that 
about 15% of the World’s population 1 Billion people live with 
disability worldwide, with about 80% living in the developing 
countries45. In Nigeria, WHO estimates put the number of people with 
disability at 19 million or approximately 20% of the country’s 
population, according to Lang and Upah46. Accurate statistics are not 
readily available on disability in Nigeria and Amusat has rightly 
stated that there are no credible and robust statistics in Nigeria about 
most things, including disability, suggesting that there is therefore a 
big knowledge gap that needs to be bridged47 in this area of research.
45 Women With Disabilities Australia (WWDA), 2013. Issues Paper, The Sexual
and Reproductive Rights of Women and Girls with Disabilities July 1st, 
2013, By Carolyn Frohmader and Stephanie Ortoleva.
46 Lang, R. and Upah, L. (2008) Scoping study: Disability issues in Nigeria.
Viewed May 3, 2009,
<http://www.ucl.ac.uk/lcccr/downloads/dfid_nigeriareport>
47 Amusat, N. 2009. Disability Care in Nigeria: The need for professional 
advocacy AJPARS Vol. 1, No. 1, pp. 30-36, at 31.
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Nigeria like many other countries, has declared support for 
disability rights. On Friday, September, 24, 2010, Nigeria signed both 
the Convention on the rights of Persons with Disabilities (CRPD) and 
its Optional Protocol, thus becoming the 94th ratifier of the 
Convention and 58th ratifier of the Optional protocol.
In its short lifetime, the CRPD has already added an 
extremely important new dimension to the fight against 
discrimination on grounds of disability in Europe. It has consolidated 
legal concepts such as reasonable accommodation, guided the 
jurisprudence of the ECtHR and energised European countries to 
develop new safeguards and measures to entrench disability rights 
and promote effective equality for persons with disabilities48.
Nigeria has an obligation to under international law as a party 
to the Convention, to establish mechanisms to effectively respect, 
protect, promote and enforce or implement measures for the 
realization of the various rights contained in the Convention, haven 
signed and ratified it49. The country has a pending Bill before its 
national Assembly for more than five years which is aimed at 
providing legal protection for the rights of PWDs, but it is yet to be 
passed into law. Even till the time of concluding this research, Nigeria 
is yet to domesticate the CRPD 2006. This suggests that steps of 
signing and ratifying the CRPD earlier on in 2010 by Nigeria, may 
have only been an indication of sympathy, while keeping PWDs as 
beggars in the streets and an indication that failure or refusal to 
legislate to make Nigerians with disabilities enjoy rights rather than 
charity, is the preferred option.
Conclusion
Considering the fact that disability is a phenomenon that increases the 
vulnerability of PWDs and makes it necessary for the law to provide 
adequate protection for their rights, Nigeria needs to translate the 
CRPD to advantage. In view of the universality, indivisibility, 
interdependence and interrelatedness of all human rights and
48 Jarlath, op.cit. (note 18 above).
49 Article 33 of the CRPD 2006 under the heading of National Implementation
and Monitoring, requires State parties to take steps to make the provisions of 
the CRPD applicable within their municipal jurisdictions.
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fundamental freedoms, there is a need for persons with disabilities to 
be guaranteed the full enjoyment of human rights without 
discrimination and there is a need for a global instrument for such a 
purpose. The CRPD which came into force in 2008, is that instrument 
that has set minimum standards for the global community and 
provided a guide for municipal governments for the legal protection 
of their citizens who have disabilities. It is therefore imperative for 
any upwardly mobile and progressive sovereign state to either enact 
an instrument with .similar provisions or at the least, adopt the CRPD 
by domesticating its provisions within its municipal legal structure. 
To date, Nigeria has not made the CRPD enforceable in its 
jurisdiction by domesticating it as required under section 12 of the 
1999 CFRN (as amended). This article advocates and recommends 
that Nigeria should take urgent steps to domesticate the CRPD and its 
optional Protocol, as it signifies a paradigm shift in the relationship of 
society and PWDs from a medical to a social model. The social model 
in contrast to the medical one, views PWDs as subjects of rights 
rather than deficient or sick persons who require being fixed before 
participating fully in society. The CRPD 2006 adopted a human rights 
approach to the subject of disability. Much as the CRPD does not 
invent entirely new rights, it has contextualized existing human rights 
provisions to enable PWDs to access and enjoy their human rights. 
Nigeria should therefore domesticate the convention on disability 
without any further hesitation in view of the benefits of so doing to 
the PWDs and the society at large. Benefits that will accrue to Nigeria 
if it domesticates the CRPD include adding important new dimension 
to the fight against discrimination on grounds of disability, 
consolidating legal concepts such as reasonable accommodation and 
the use of universal design, and guidance for the jurisprudence on 
disability in the country. It will also enable Nigeria to develop new 
safeguards and measures to entrench disability rights and promote 
effective equality for PWDs.
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