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RAPPORTEUR
29th Session: Commissioner Chigovera
30th Session: Commissioner Chigovera
31st Session: Commissioner Chigovera
32nd Session: Commissioner Chigovera
33rd Session: Commissioner Chigovera
SUMMARY OF FACTS
1. The Complainants are mental health advocates, submitting the
communication on behalf of patients detained at Campama, a Psychiatric Unit
of the Royal Victoria Hospital, and existing and ‘future' mental health
patients detained under the Mental Health Acts of the Republic of The
Gambia.
2. The complaint was sent by fax and received at the Secretariat on 7th
March 2001.
3. The Complainants allege that legislation governing mental health in The
Gambia is outdated.
4. It is alleged that within the Lunatics Detention Act (the principle
instrument governing mental health) there is no definition of who a lunatic
is, and that there are no provisions and requirements establishing
safeguards during the diagnosis, certification and detention of the patient.
5. Further, the Complainants allege that there is overcrowding in the
Psychiatric Unit, no requirement of consent to treatment or subsequent
review of continued treatment.
6. The Complainants also state that there is no independent examination of
administration, management and living conditions within the Unit itself.
7. The Complainants also complain that patients detained in the psychiatric
unit are not even allowed to vote.
8. The Complainants notify the African Commission that there is no provision
for legal aid and the Act does not make provision for a patient to seek
compensation if his/her rights have been violated.
COMPLAINT
9. The Complainants allege a violation of Articles 2, 3, 5, 7(1)(a) and (c),
13(1), 16 and 18(4) of the African Charter on Human and Peoples' Rights.
PROCEDURE
10. Ms.H. Purohit and Mr. P. Moore presented the communication and it was
received at the Secretariat on the 7th March 2001.
11. On 14th March 2001, the Secretariat wrote to the Complainants requesting
that they furnish the names of the persons on whose behalf they were acting.
12. On the 4th April 2001, the Secretariat received the names of the persons
on whose behalf Purohit and Moore were acting and it was stated clearly that
those persons wished to remain anonymous.
13. At its 29th Ordinary Session from 23rd April to 7th May 2001 in Tripoli,
Libya, the African Commission examined the Complaint and decided to be
seized of it.
14. On 23rd May 2001, the Secretariat conveyed the above decision to the
parties and requested parties to furnish it with additional information on
admissibility in accordance with Article 56 of the African Charter and
forwarded a copy of the text of the complaint to the Respondent State. The
Parties were requested to present their written submissions to the
Secretariat within three months of notification of the decision.
15. During the 30th Ordinary Session held from 13th to 27th October 2001 in
Banjul, The Gambia, the African Commission considered the Complaint and the
rapporteur of the communication addressed questions to the Representative of
the Respondent State. The Representative stated that she was not in a
position to provide satisfactory responses to the questions posed at the
time but promised to do so soon after the 30th session. The African
Commission decided to defer consideration of this communication to the 31st
Ordinary Session pending receipt of the Respondent State's submissions.
16. On 9th November 2001, the Secretariat wrote to the Complainants
informing them of the decision taken by the African Commission at its 31st
Session and also forwarded them copies of the Respondent State's submissions
that were received at the Secretariat on 11th October 2001. The Complainants
were also reminded to forward exhaustive submissions on the question of
admissibility of the complaint within two (2) months.
17. On 9th November 2001, the Secretariat also forwarded a Note Verbale to
the Respondent State informing it of the decision of the African Commission
and reminding them to furnish the African Commission with responses to the
questions raised by the African Commission at its 31st Session within two
(2) months.
18. The Secretariat also on numerous occasions by telephone and in writing
reminded the Solicitor General of the Respondent State to ensure that their
written submissions on this matter are forwarded to the Secretariat.
19. At the 31st Ordinary Session held from 2nd to 16th May 2002 in Pretoria,
South Africa the African Commission considered the communication and it was
declared admissible.
20. On 29th May 2002, the Secretariat informed the parties of the decision
of the African Commission and requested them to transmit their written
submissions on admissibility to the Secretariat within a period of 3 months.
21. At its 32nd Ordinary Session held from 17th to 23rd October in Banjul,
The Gambia, the African Commission decided to defer consideration of the
communication on the merits and the parties were informed accordingly.
22. By a Note Verbale dated 30th October 2002, the Respondent State was
reminded to forward its written submissions on the merits to the Secretariat
of the African Commission within a period of 2 months.
23. At its 33rd Ordinary Session held from 15th to 29th May 2003 in Niamey,
Niger, the African Commission considered this communication and decided to
deliver its decision on the merits.
LAW
ADMISSIBILITY
24. Article 56 of the African Charter governs admissibility of
communications brought before the African Commission in accordance with
Article 55 of the African Charter. All of the conditions of this Article are
met by the present communication. Only Article 56(5), which requires that
local remedies be exhausted, necessitates close scrutiny. Article 56(5) of
the African Charter provides:
"Communications ... received by the African Commission shall be considered if
they:
(5) are sent after exhausting local remedies, if any unless it is obvious
that this procedure is unduly prolonged."
25. The rule requiring exhaustion of local remedies as a condition of the
presentation of a complaint before the African Commission is premised on the
principle that the Respondent State must first have an opportunity to
redress by its own means within the framework of its own domestic legal
system, the wrong alleged to have been done to the individual.
26. The Complainants submit that they could not exhaust local remedies
because there are no provisions in the national laws of The Gambia allowing
for the Complainants to seek remedies where a violation has occurred.
27. The Respondent State concedes that the Lunatics Detention Act does not
contain any provisions for the review or appeal against an order of
detention or any remedy for detention made in error or wrong diagnosis or
treatment. Neither do the patients have the legal right to challenge the two
separate Medical Certificates, which constitute the legal basis of their
detention.
28. The Respondent State submits that in practice patients found to be
insane are informed that they have a right to ask for a review of their
assessment. The Respondent State further states that there are legal
provisions or procedures within the Gambia that such a vulnerable group of
persons could have utilised for their protection. Section 7(d) of the
Constitution of The Gambia recognises that Common Law forms part of the laws
of The Gambia. As such, Respondent State argues, the Complainants could seek
remedies by bringing an action in tort for false imprisonment or negligence
where a patient held at Campama Psychiatric Unit is wrongly diagnosed.
29. The Respondent State further submits that patients detained under the
Lunatics Detention Act have every right to challenge the Act in a
Constitutional Court claiming that their detention under that Act deprives
them of their right to freedom of movement and association as provided for
under the Gambian Constitution.
30. The concern raised in the present communication is that in the Gambia,
there are no review or appeal procedures against determination or
certification of one's mental state for both involuntary and voluntary
mental patients. Thus the legislation does not allow for the correction of
an error assuming a wrong certification or wrong diagnosis has been made,
which presents a problem in this particular case where examination of the
said mental patients is done by general practitioners and not psychiatrists.
So if an error is made and there is no avenue to appeal or review the
medical practitioners' assessment, there is a great likelihood that a person
could be wrongfully detained in a mental institution.
31. Furthermore, the Lunatics Detention Act does not lay out fixed periods
of detention for those persons found to be of unsound mind, which, coupled
with the absence of review or appeal procedures could lead into a situation
where a mental patient is detained indefinitely.
32. The issue before the African Commission is whether or not there are
domestic remedies available to the Complainants in this instance.
33. The Respondent State indicates that there are plans to amend the
Lunatics Detention Act, which, in other words is an admission on part of the
Respondent State that the Act is imperfect and would therefore not produce
real substantive justice to the mental patients that would be detained.
34. The Respondent State further submits that even though the Act itself
does not provide review or appeal procedures, there are legal procedures or
provisions in terms of the constitution that the Complainants could have
used and thus sought remedies in court. However, the Respondent State has
informed the African Commission that no legal assistance or aid is availed
to vulnerable groups to enable them access the legal procedures in the
country. Only persons charged with Capital Offences get legal assistance in
accordance with the Poor Persons Defence (Capital Charge) Act.
35. In the present matter, the African Commission cannot help but look at
the nature of people that would be detained as voluntary or involuntary
patients under the Lunatics Detention Act and ask itself whether or not
these patients can access the legal procedures available (as stated by the
Respondent State) without legal aid.
36. The African Commission believes that in this particular case, the
general provisions in law that would permit anybody injured by another
person's action are available to the wealthy and those that can afford the
services of private counsel. However, it cannot be said that domestic
remedies are absent as a general statement - the avenues for redress are
there if you can afford it.
37. But the real question before this Commission is whether looking at this
particular category of persons the existent remedies are realistic. The
category of people being represented in the present communication are likely
to be people picked up from the streets or people from poor backgrounds and
as such it cannot be said that the remedies available in terms of the
Constitution are realistic remedies for them in the absence of legal aid
services.
38. If the African Commission were to literally interpret Article 56 (5) of
the African Charter, it might be more inclined to hold the communication
inadmissible. However, the view is that, even as admitted by the Respondent
State, the remedies in this particular instance are not realistic for this
category of people and therefore not effective and for these reasons the
African Commission declares the communication admissible.
MERITS
39. The present communication was declared admissible at the African
Commission's 31st Ordinary Session in May 2002. The Respondent State has
since been requested numerous times to forward their submissions on the
merits but to no avail. On 29th April 2003, 2 weeks prior to the 33rd
Ordinary Session, the Respondent State finally forwarded their written
submissions to the Secretariat of the African Commission.
40. In coming to its decision, the African Commission will refer the more
recent written submissions on the merits as presented by the Respondent
State as well the Respondent State's submissions on admissibility in
particular where they address issues relating to the merits of this
communication.
41. When States ratify or accede to international instruments like the
African Charter, they do so voluntarily and very much awake to their
responsibilities to implement the provisions of these instruments. It
therefore troubles the African Commission to be forced to make several
requests to the Respondent State for its submissions, which are pertinent to
its consideration of communications. In the present communication, it is
very much unfortunate that the African Commission was forced to take this
path bearing in mind the fact that its Headquarters is within the Respondent
State. This situation not only seriously hampers the work of the African
Commission but it also defeats the whole purpose of the African Charter, to
which the Respondent States professes to be aligned with. The African
Commission therefore hopes that in future the Respondent State will be
forthcoming to its requests especially those relating to communications.
42. The Complainants submit that by ratifying the African Charter, the
Respondent State undertook an obligation to bring its domestic laws and
practice in conformity with the African Charter. This presupposes that any
domestic law, which violates the African Charter, should as soon as the
Respondent State ratifies or accedes to the African Charter be brought into
conformity with Articles provided for therein. "As soon as" in this context
would mean that States that are party to the African Charter should take
immediate steps, mindful of their obligations, to bring their legislation in
line with the African Charter. The legislation in dispute in the present
communication - the LDA was enacted in 1917 and the last amendment to this
Act was effected in 1964. There is no doubt that since 1964, there have been
many developments in the field of human rights, particularly addressing the
rights of persons with disabilities. As such, the LDA should have long been
amended to bring it in line with the changed circumstances.
43. In principle, where domestic laws that are meant to protect the rights
of persons within a given country are alleged to be wanting, the African
Commission holds the view that it is within its mandate to examine the
extent to which such domestic law complies with the provisions of the
African Charter . This is because when a State ratifies the African Charter
[FN1] it is obligated to uphold the fundamental human rights contained
therein [FN2]. Otherwise if the reverse were true, the significance of
ratifying a human rights treaty would be seriously defeated. This principle
is in line with Article 14 of the Vienna Convention on the Law of Treaties
of 1980.
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[FN1] Communication 211/98 - Legal Resources Foundation/Zambia
[FN2] In the case of the Attorney General v Unity Dow 1994 6 BCLR 1 Per
Ammisah JP at Pages 27-30 and Aguda JA at pages 43-47, The Botswana Appeal
Court correctly observed that there is a presumption that when States sign
or ratify treaties or human rights instruments, they signify their intention
to be bound by and to adhere to the obligations arising from such treaties
or human rights instruments even if they do not enact domestic legislation
to effect domestic incorporation.
Article 14 of the Vienna Convention provides as follows: "1. The consent of
a State to be bound by a treaty is expressed by ratification when: (a) the
treaty provides for such consent to be expressed by means of ratification;
(b) it is otherwise established that the negotiating States were agreed that
ratification should be required; (c) the representative of the State has
signed the treaty subject to ratification; or (d) the intention of the State
to sign the treaty subject to ratification appears from the full powers of
its representative or was expressed during the negotiation. 2. The consent
of a State to be bound by a treaty is expressed by acceptance or approval
under conditions similar to those which apply to ratification."
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44. The Complainants submit that the provisions of the Lunatics Detention
Act (LDA) condemning any person described as a "lunatic" to automatic and
indefinite institutionalisation are incompatible with and violate Articles 2
and 3 of the African Charter. Section 2 of the LDA defines a "lunatic" as
including "an idiot or person of unsound mind".
45. The Complainants argue further that to the extent that mental illness is
a disability , the practice of detaining persons regarded as mentally ill
indefinitely and without due process constitutes discrimination on the
analogous ground of disability [FN4].
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[FN4] Paragraph 17 of the Introduction to the Standard Rules on the
Equalisation of Opportunities for Persons with Disabilities (UNGA Resolution
48/96 of 20th December 1993) provides that "the term "disability" summarises
a great number of different functional limitations ...People may be disabled
by physical, intellectual or sensory impairment, medical conditions or
mental illness..."
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46. Article 2 of the African Charter provides:
"Every individual shall be entitled to the enjoyment of the rights and
freedoms recognised and guaranteed in the present Charter without
distinction of any kind such as race, ethnic group, colour, sex, language,
religion, or any other opinion, national or social origin, fortune, birth or
other status."
Article 3 of the African Charter provides:
"Every individual shall be equal before the law. Every individual shall be
entitled to equal protection of the law."
47. In interpreting and applying the African Charter, the African Commission
relies on its own jurisprudence, and as provided by Articles 60 and 61 of
the African Charter, on appropriate and relevant international and regional
human rights instruments, principles and standards.
48. The African Commission is, therefore, more than willing to accept legal
arguments with the support of appropriate and relevant international and
regional human rights instruments, principles, norms and standards taking
into account the well recognised principle of universality which was
established by the Vienna Declaration and Programme of Action of 1993 and
which declares that "all human rights are universal, indivisible,
interdependent, and interrelated.[FN5]"
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[FN5] Vienna Declaration and Programme of action, A/CONF.157/23, para.5
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49. Articles 2 and 3 of the African Charter basically form the
anti-discrimination and equal protection provisions of the African Charter.
Article 2 lays down a principle that is essential to the spirit of the
African Charter and is therefore necessary in eradicating discrimination in
all its guises, while Article 3 is important because it guarantees fair and
just treatment of individuals within a legal system of a given country.
These provisions are non-derogable and therefore must be respected in all
circumstances in order for anyone to enjoy all the other rights provided for
under the African Charter.
50. In their submissions to the African Commission, the Respondent State
conceded that under the LDA, persons declared "lunatics" do not have the
legal right to challenge the two separate Medical Certificates that
constitute the legal basis of their detention. However, the Respondent State
argued, that in practice patients found to be insane are informed that they
have a right to ask for a review of their assessment. The Respondent State
further argues that Section 7(d) of the Constitution of The Gambia
recognises that Common Law forms part of the laws of The Gambia. Therefore,
such a vulnerable group of persons are free to seek remedies by bringing a
tort action for false imprisonment or negligence if they believe they have
been wrongly diagnosed and as a result of such diagnosis been wrongly
institutionalised.
51. Furthermore, the Respondent State submits that patients detained under
the LDA have every right to challenge the Act in a Constitutional Court
claiming that their detention under that Act deprives them of their right to
freedom of movement and association as provided for under the Constitution
of The Gambia.
52. In view of the Respondent State's submissions on the availability of
legal redress, the African Commission questioned the Respondent State as to
whether legal aid or assistance would be availed to such a vulnerable group
of persons in order for them to access the legal procedures of in the
country. The Respondent State informed the African Commission that only
persons charged with Capital Offences are entitled to legal assistance in
accordance with the Poor Persons Defence (Capital Charge) Act.
53. The category of persons that would be detained as voluntary or
involuntary patients under the LDA are likely to be people picked up from
the streets or people from poor backgrounds. In cases such as this, the
African Commission believes that the general provisions in law that would
permit anybody injured by another person's act can only be available to the
wealthy and those that can afford the services of private counsel.
54. Clearly the situation presented above fails to meet the standards of
anti-discrimination and equal protection of the law as laid down under the
provisions of Articles 2 and 3 of the African Charter and Principle 1(4)
[FN6] of the United Nations Principles for the Protection of Persons with
Mental Illness and the Improvement of Mental Illnesses and the Improvement
of Mental Health Care [FN7].
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[FN6] Principle 1(4) provides - There shall be no discrimination on the
grounds of mental illness. "Discrimination" means any distinction, exclusion
or preference that has an effect of nullifying or impairing equal enjoyment
of rights.
[FN7] G.A. Res. 46/119, 46 U.N. GAORSupp. (No. 49) at 189, U.N. Doc A/46/49
(1991)
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55. The Complainants further submit that the legislative scheme of the LDA,
its implementation and the conditions under which persons detained under the
Act are held, constitute separately and together violations of respect for
human dignity in Article 5 of the African Charter and the prohibition
against subjecting anybody to cruel, inhuman or degrading treatment as
contained in the same Charter provision.
56. Article 5 of the African Charter provides:
‘Every individual shall have the right to the respect of dignity inherent in
a human being and to the recognition of his legal status. All forms of
exploitation and degradation of man, particularly slavery, slave trade,
torture, cruel, inhuman or degrading punishment and treatment shall be
prohibited.'
57. Human dignity is an inherent basic right to which all human beings,
regardless of their mental capabilities or disabilities as the case may be,
are entitled to without discrimination. It is therefore an inherent right
which every human being is obliged to respect by all means possible and on
the other hand it confers a duty on every human being to respect this right.
58. In Media Rights Agenda/Nigeria [FN8], the African Commission held that
the term "cruel, inhuman or degrading punishment and treatment" is to be
interpreted so as to extend to the widest possible protection against
abuses, whether physical or mental; furthermore, in John K. Modise/Botswana
[FN9], the African Commission stated that exposing victims to "personal
suffering and indignity" violates the right to human dignity. Personal
suffering and indignity can take many forms, and will depend on the
particular circumstances of each communication brought before the African
Commission.
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[FN8] Communication 224/98
[FN9] Communication 97/93 (decision reached at the 27th ordinary session of
the African Commission held in 2000)
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59. Under the LDA, persons with mental illness have been branded as "lunatics" and
"idiots", terms, which without any doubt dehumanise and deny
them any form of dignity in contravention of Article 5 of the African
Charter
60. In coming to this conclusion, the African Commission would like to draw
inspiration from Principle 1(2) of the United Nations Principles for the
Protection of Persons with Mental Illness and the Improvement of Mental
Care. Principle 1(2) requires that "all persons with mental illness, or who
are being treated as such, shall be treated with humanity and respect for
the inherent dignity of the human person."
61. The African Commission maintains that mentally disabled persons would
like to share the same hopes, dreams and goals and have the same rights to
pursue those hopes, dreams and goals just like any other human being [FN10].
Like any other human being, mentally disabled persons or persons suffering
from mental illnesses have a right to enjoy a decent life, as normal and
full as possible, a right which lies at the heart of the right to human
dignity. This right should be zealously guarded and forcefully protected by
all States party to the African Charter in accordance with the well
established principle that all human beings are born free and equal in
dignity and rights [FN11].
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[FN10] Article 3 of the UN Declaration on the Rights of Disabled Persons,
UNGA
Resolution 3447(XXX) of 9th December 1975, provides that "Disabled persons
have the inherent right to respect for their human dignity. Disabled
persons, whatever the origin, nature and seriousness of their handicaps and
disabilities, have the same fundamental rights as their fellow citizens of
the same age, which implies first and foremost the right to enjoy a decent
life, as normal and as full as possible."
[FN11] Article 1 of the Universal Declaration of Human Rights of 1948
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62. The Complainants also submit that the automatic detention of persons
considered "lunatics" within the meaning of the LDA violates the right to
personal liberty and the prohibition of arbitrary arrest and detention in
terms of Article 6 of the African Charter.
63. Article 6 of the African Charter provides:
‘Every individual shall have the right to liberty and to the security of his
person. No one may be deprived of his freedom except for reasons and
conditions previously laid down by law. In particular, no one may be
arbitrarily arrested or detained.'
64. Article 6 of the African Charter guarantees every individual, be they
disabled or not, the right to liberty and security of the person.
Deprivation of such liberty is only acceptable if it is authorised by law
and is compatible with the obligations of States Parties under the African
Charter [FN12]. However, the mere mention of the phrase ‘except for reasons
and conditions previously laid down by law' in Article 6 of the African
Charter does not mean that any domestic law may justify the deprivation of
such persons' freedom and neither can a State party to the African Charter
avoid its responsibilities by recourse to the limitations and claw back
clauses in the African Charter [FN13]. Therefore, any domestic law that
purports to violate this right should conform to internationally laid down
norms and standards.
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[FN12] Consolidated communications 147/95, 149/95 - Sir Dawda K. Jawara/The
Gambia
[FN13] Communication 211/98 Legal Resources Foundation/Zambia
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65. Article 6 of the African Charter further states that no one may be
arbitrarily arrested or detained. Prohibition against arbitrariness requires
among other things that deprivation of liberty shall be under the authority
and supervision of persons procedurally and substantively competent to
certify it.
66. Section 3(1) of the LDA prescribes circumstances under which mentally
disabled persons can be received into a place of detention and they are
a. On submission of 2 certificates by persons referred to under the LDA as
"duly qualified medical practitioners"
b. Upon an order being made by and signed by judge of the Supreme Court, a
Magistrate or any two Justices of the Peace
67. A "duly qualified medical practitioner" under the LDA has been defined
as "every person possessed of a qualification entitling him to be registered
and practice medicine in The Gambia" [FN14].
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[FN14] Section 2 of the Lunatics Detention Act Cap 40:05, Laws of The Gambia
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68. By these provisions, the LDA authorises the detention of persons
believed to be mentally ill or disabled on the basis of opinions of general
medical practitioners. Although the LDA does not lay out fixed periods of
detention for persons found to be mentally disabled, the Respondent State
has submitted that in practice the length of time spent by patients in the
unit ranges from two to four weeks and that it is only in exceptional
circumstances that patients may be detained longer than this period. These
exceptional circumstances apply to mainly schizophrenics, and vagrant
psychotics without any family support and known addresses. The African
Commission takes note of the fact that such general medical practitioners
may not be actual experts in the field of mental health care and as such
there is a possibility that they could make a wrong diagnosis upon which
certain persons may be institutionalised. Additionally, because the LDA does
not provide for review or appeal procedures, persons institutionalised under
such circumstances would not be able to challenge their institutionalisation
in the event of an error or wrong diagnosis being made. Although this
situation falls short of international standards and norms [FN15], the
African Commission is of the view that it does not violate the provisions of
Article 6 of the African Charter because Article 6 of the African Charter
was not intended to cater for situations where persons in need of medical
assistance or help are institutionalised.
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[FN15] See Principles 15, 16 and 17 of the UN Principles for the Protection
of Persons with Mental Illness and the Improvement of Mental Care
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69. The Complainants also allege that institutionalisation of detainees
under the LDA who are not afforded any opportunity of being heard or
represented prior to or after their detention violates Article 7 (1) (a) and
(c) of the African Charter.
70. Article 7 (1) (a) and (c) of the African Charter provides:
"Every individual shall have the right to have his cause heard. This
comprises:
a) The right to an appeal to competent national organs against acts of
violating his fundamental rights as recognised and guaranteed by
conventions, laws, regulations and customs in force;
b) The right to defence, including the right to be defended by counsel of
his choice."
71. It is evident that the LDA does not contain any provisions for the
review or appeal against an order of detention or any remedy for detention
made in error or wrong diagnosis or treatment. Neither do the patients have
the legal right to challenge the two separate Medical Certificates, which
constitute the legal basis of their detention. These omissions in the LDA
clearly violate Articles 7(1)(a) and (c) of the African Charter.
72. The guarantees in Article 7 (1) extend beyond hearings in the normal
context of judicial determinations or proceedings. Thus Article 7(1)
necessitates that in circumstances where persons are to be detained, such
persons should at the very least be presented with the opportunity to
challenge the matter of their detention [FN16] before the competent
jurisdictions that should have ruled on their detention. The entitlement of
persons with mental illness or persons being treated as such to be heard and
to be represented by Counsel in determinations affecting their lives,
livelihood, liberty, property or status, is particularly recognised in
Principles 16, 17 and 18 of the UN Principles for the Protection of Persons
with Mental Illness and the Improvement of Mental Care.
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[FN16] Communication 71/92, Rencontre Africaine pour la defense des droits
de l'homme/Zambia, (1995); Communication 159/96, UIDH et al/ Angola, (1997)
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73. The Complainants submit that the failure of the Respondent State to
provide for and enable the detainees under the LDA to exercise their civic
rights and obligations, including the right to vote, violates Article 13 (1)
of the African Charter which provides:
"Every citizen shall have the right to participate freely in the government
of his country, either directly or through freely chosen representatives in
accordance with the provisions of the law."
74. In its earlier submissions, the Respondent State admits that persons
detained at Campama are not allowed to vote because they believe that
allowing mental health patients to vote would open the country's democratic
elections to much controversy as to the mental ability of these patients to
make an informed choice as to which candidate to vote for. Subsequently, the
Respondent State in its more recent submissions suggests that there are
limited rights for some mentally disabled persons to vote; however this has
not been clearly explained.
75. The right provided for under Article 13(1) of the African Charter is
extended to "every citizen" and its denial can only be justified by reason
of legal incapacity or that the individual is not a citizen of a particular
State. Legal incapacity may not necessarily mean mental incapacity. For
example a State may fix an age limit for the legibility of its own citizens
to participate in its government. Legal incapacity, as a justification for
denying the right under Article 13(1) can only come into play by invoking
provisions of the law that conform to internationally acceptable norms and
standards.
76. The provisions of Article 13(1) of the African Charter are similar in
substance to those provided for under Article 25 of the International
Covenant on Civil and Political Rights. In interpreting Article 13(1) of the
African Charter, the African Commission would like to endorse the
clarification provided by the Human Rights Committee in relation to Article
25. The Human Rights Committee has expressed that any conditions applicable
to the exercise of Article 25 rights should be based on objective and
reasonable criteria established by law. [FN17] Besides the view held by the
Respondent State questioning the mental ability of mentally disabled
patients to make informed choices in relation to their civic duties and
obligations, it is very clear that there are no objective bases within the
legal system of the Respondent State to exclude mentally disabled persons
from political participation.
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[FN17] Human Rights Committee, General Comment 25 (57), Adopted by the
Committee at its 1510th meeting, U.N. Doc. CCPR/C/21/Rev.1/Add.7 (1996),
paragraph 4.
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77. The Complainants submit that the scheme and operation of the LDA both
violate the right to health provided for in Article 16 of the African
Charter when read with Article 18 (4) of the African Charter.
78. Article 16 of the African Charter provides:
1. Every individual shall have the right to enjoy the best attainable state
of physical and mental health
2. State Parties to the present Charter shall take the necessary measures to
protect the health of their people and to ensure that they receive medical
attention when they are sick.
79. Article 18(4) of the African Charter which provides:
"The aged and disabled shall also have the right to special measures of
protection in keeping with their physical or moral needs."
80. Enjoyment of the human right to health as it is widely known is vital to
all aspects of a person's life and well-being, and is crucial to the
realisation of all the other fundamental human rights and freedoms. This
right includes the right to health facilities, access to goods and services
to be guaranteed to all without discrimination of any kind.
81. More so, as a result of their condition and by virtue of their
disabilities, mental health patients should be accorded special treatment
which would enable them not only attain but also sustain their optimum level
of independence and performance in keeping with Article 18(4) of the African
Charter and the standards applicable to the treatment of mentally ill
persons as defined in the Principles for the Protection of Persons with
Mental Illness and Improvement of Mental Health Care.
82. Under the Principles, "mental health care" includes analysis and
diagnosis of person's mental condition and treatment, care and
rehabilitation for a mental illness or suspected mental illness. The
Principles envisage not just ‘attainable standards', but the highest
attainable standards of health care for the mentally ill at three levels.
First, in the analysis and diagnosis of a person's mental condition; second,
in the treatment of that mental condition and; thirdly, during the
rehabilitation of a suspected or diagnosed person with mental health
problems.
83. In the instant case, it is clear that the scheme of the LDA is lacking
in terms of therapeutic objectives as well as provision of matching
resources and programmes of treatment of persons with mental disabilities, a
situation that the Respondent State does not deny but which never-the-less
falls short of satisfying the requirements laid down in Articles 16 and
18(4) of the African Charter.
84. The African Commission would however like to state that it is aware that
millions of people in Africa are not enjoying the right to health maximally
because African countries are generally faced with the problem of poverty
which renders them incapable to provide the necessary amenities,
infrastructure and resources that facilitate the full enjoyment of this
right. Therefore, having due regard to this depressing but real state of
affairs, the African Commission would like to read into Article 16 the
obligation on part of States party to the African Charter to take concrete
and targeted steps, while taking full advantage of its available resources,
to ensure that the right to health is fully realised in all its aspects
without discrimination of any kind.
85. The African Commission commends the Respondent State's disclosure that
there is no significant shortage of drug supplies at Campama and that in the
event that there are drug shortages, all efforts are made to alleviate the
problem. Furthermore, that it has taken steps to improve the nature of care
given to mental health patients held at Campama. The Respondent State also
informed the African Commission that it is fully aware of the outdated
aspects of the LDA and has therefore long taken administrative steps to
complement and/or reform the archaic parts of the LDA. This is however not
enough because the rights and freedoms of human beings are at stake. Persons
with mental illnesses should never be denied their right to proper health
care, which is crucial for their survival and their assimilation into and
acceptance by the wider society
FOR THE ABOVE REASONS, THE AFRICAN COMMISSION
Finds the Republic of The Gambia in violation of Articles 2, 3, 5, 7 (1)(a)
and (c), 13(1), 16 and 18(4) of the African Charter.
Strongly urges the Government of The Gambia to:
(a) Repeal the Lunatics Detention Act and replace it with a new legislative
regime for mental health in The Gambia compatible with the African Charter
on Human and Peoples' Rights and International Standards and Norms for the
protection of mentally ill or disabled persons as soon as possible;
(b) Pending (a), create an expert body to review the cases of all persons
detained under the Lunatics Detention Act and make appropriate
recommendations for their treatment or release;
(c) Provide adequate medical and material care for persons suffering from
mental health problems in the territory of The Gambia;
[2] Requests the Government of The Gambia to report back to the African
Commission when it submits its next periodic report in terms of Article 62
of the African Charter on measures taken to comply with the recommendations
and directions of the African Commission in this decision.
Done at the 33rd Ordinary Session of the African Commission held from 15th
to 29th May 2003 in Niamey, Niger. |
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