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.
The applicants alleged, amongst other things, that the legislative regime in The Gambia for mental health patients violated the right to enjoy the best attainable state of physical and mental health (Article 16) and the right of the disabled to special measures of protection in keeping with their physical and moral needs (Article 18(4)). Both rights are guaranteed in the African Charter on Human and Peoples’ Rights.
Holding that The Gambia fell short of satisfying the requirements of Articles 16 and 18(4) of the African Charter, the Commission stated that the enjoyment of the right to health is crucial to the realisation of other fundamental rights and freedoms and includes the right of all to health facilities, as well as access to goods and services, without discrimination of any kind. The Commission iterated that mental health patients should be accorded special treatment to enable them to attain and sustain their optimum level of independence and performance. This would be consistent with Article 18(4) and the standards outlined in the UN Principles for the Protection of Persons with Mental Illness and Improvement of Mental Health Care.
Recognising the prevailing poverty that renders African countries incapable of providing the necessary amenities, infrastructure and resources to facilitate enjoyment of the right to health, the Commission read the obligation on States Parties, “to take concrete and targeted steps, while taking full advantage of their available resources, to ensure that the right to health is fully realised in all its aspects without discrimination of any kind” into Article 16.
Amongst other things, the Commission urged the Government to repeal and replace the impugned legislative regime and provide adequate medical and material care for persons suffering from mental health problems in the territory of The Gambia.
Keywords: Purohit and Moore v. The Gambia. Cited as: Communication No. 241/2001, Sixteenth Activity report 2002-2003, Annex VII, Health, Rights
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
