Communication alleging violation of the right to best attainable state of physical and mental health (Article 16(1) African Charter) and the right of the disabled to special measures (Article 18(4) African Charter); limitations on rights under Charter; positive obligations.
Thusfar, the Government has not taken the steps urged by the Commission. In November 2005, the World Health Organisation met with Gambian Department of Health officials and started work on drafting a mental health policy for The Gambia. The Gambia feels that this should be the first step before drafting new mental health legislation. Renovations have been made at the Royal Victoria Hospital where the psychiatric patients on whose behalf the case was taken were held. The petitioners are returning to the Commission in May 2006 seeking to have revisited its holding that Article 6 (right to liberty) was not intended to cater for situations where persons in need of medical assistance or help are institutionalised.
This was the first decision in which the Commission made a serious effort to flesh out the substantive content of Article 16. The Commission appears to have limited the obligation of a State to progressively realize rights and to do no more than the maximum that its available resources permit even though there is no such qualification in the text of Article 16. This is arguably a significant weakening of the obligation imposed on states under Article 16(2) of the African Charter. In addition, the Commission did not clearly specify the details of this exception to a state’s general obligations under the Charter.
Ms Harisha Purohit and Mr Paul Moore (mental health advocates) Paul Moore (petitioner) Email: ppepininth@hotmail.com The organisation Interights gave assistance in the communication: Judith Oder Interights Lancaster House 33 Islington High Street London N1 9LH United Kingdom Tel: +442072783230 Fax: +442072784334 joder@interights.org