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Please note the summary below draws on the case summary made by ESCR-Net which is available on http://www.escr-net.org/caselaw/caselaw_show.htm?doc_id=401249&

 

 

Name of Case

Purohit and Moore v Gambia

Keywords, Forum, Remainder of Citation, On what breach of law was the case brought?, Process, Result of case, What has this case done to further the right to education?

Keywords

Progressive realisation Disability Rights, Health Rights, Maximum Available Resources, Progressive Realization/Non-Retrogression, African Commission on Human Rights, African Charter on Human Rights, regional level, discrimination

Forum

African Commission on Human and Peoples’ Rights

Remainder of Citation

Communication 241/200. Decided at 33rd Ordinary Session of the African Commission (15-29 May 2003).

On what breach of law was the case brought?

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)) guaranteed in the African Charter on Human and Peoples’ Rights.

Process

The communication was brought before the African Commission on Human and Peoples’ Rights by two mental health advocates, Ms H. Purohit and Mr P. Moore, on behalf of mental patients at a psychiatric unit in the Gambia, and existing and future mental patients detained under the Mental Health Acts of the Republic of The Gambia.
The applicants alleged that the Lunatic Detention Act failed to provide safeguards for patients who were suspected of being insane during their diagnosis, certification and detention. Among other things, it did not make provision for the review of, or appeal against, orders of detention or any remedy for erroneous detentions. It was also argued that no provision existed for the independent examination, management and living conditions within the unit itself.

Result of case

The Commission stated that the Gambia did not satisfy Articles 16 and 18(4) of the Charter and that 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 strongly urged 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;

The Commission recognised that the poverty that exists in many African countries makes it difficult to provide all the necessary amenities, infrastructure and resources to facilitate enjoyment of the right to health. It did however, interpret Article 16 as requiring the governments ‘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’.

The Commission did not allow a general lack of resources as an excuse not to realise a specific duty. For example, in the course of analysing the adequacy of mental health care in Gambia, the government disclosed that it actually had a sufficient supply of medicines for mental health patients, but that they had not been distributed. Consequently the African Commission on Human and Peoples' Rights could justifiably order that the state provide these medicines to those who had need of them, even though it noted the state's severe resource constraints.

What has this case done to further the right to education?

It is likely the Commission would similarly make the demands in the above quote in a situation regarding the right to education. i.e. even if poverty meant that a government could not guarantee fulfilment of the right to education for all, it should not provide better education for some groups whilst discriminating against others.

If the materials such as school books are in existence, a government should not use a general excuse of lack of resources not to distribute them or to not distribute them without discrimination. See the case of Minister of Health and Others v Treatment Action Campaign and Others in progressive realisation and budget interfering.

Note. See case of V v. Einwohrnergemeine X und Regierunsgrat des Kantons Bern in the budget interfering/progressive realisation section of cases as a further example of where the materials or systems are already in place.