ANALYSIS OF ARTICLE 16 (1) OF THE AFRICAN CHARTER ON HUMAN AND PEOPLES’ RIGHTS
INTRODUCTION
Perhaps the people in all communities that face the most stereotype, discrimination, and abuse (physical, emotional and mental) are those that are naturally endowed differently than the rest of society. These abuses are innumerable and take on many forms depending on the society. Therefore, human rights law has taken the lead in putting a stop to this blatant violation of human dignity and purity. It is against this backdrop that the African Charter on Human and Peoples’ Right (the African Charter) has laid down, enshrined, and encoded this time-honoured legal principle of preservation of bodily integrity and mental agility (physical and mental health).
ARTCLE 16 (1)
This is an essential right which the African Commission on Human and Peoples’ Rights (the Commission) described in the following words: “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 realization of all the other fundamental human rights and freedoms,” Purohit and Moore v. The Gambia, African Commission on Human and Peoples’ Rights, Comm. No. 241/2001 (2003). p 80.
The case of Purohit and Moore (supra) can be described as the locus classicus case on the jurisprudence of the Commission on Article 16 of the Charter. In this case, the Complainants alleged, inter alia, that within the Lunatics Detention Act (the principal instrument governing mental health in the Gambia) 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. They further, alleged that there is overcrowding in the Psychiatric Unit, no requirement of consent to treatment or subsequent review of continued treatment; the Complainants also state that there is no independent examination of administration, management and living conditions within the Unit itself.
Article 16 states as follows:
Accordingly, states have an obligation under Article 1, 2, 3, and 5 of the African Charter to institute measures geared towards the fulfilment of its obligation under Article 16 (1). This is done through enactment, implementation, and enforcement of good laws. Also, through states’ duty to honour their international treaty obligations, it is urged to build, provide or creative facilities and opportunities towards the realisation of this right. It is trite that when States sign or ratify treaties or human rights instruments, they signify their intention to be bound by and adhere to the positive and negative obligations arising therefrom, the human rights instruments, even if they do not enact domestic legislation to effect domestic incorporation (domestication).
In addition to having a positive obligation to provide better mental facilities and medical supplies etc, States also have the negative obligation not to infringe upon this right. The Commission commented, “…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…”, Purohit and Moore v. The Gambia, African Commission on Human and Peoples’ Rights, Comm. No. 241/2001 (2003). p 81.
Also, the Commission has observed that, “States are under the obligation to respect the right to health by, inter alia, refraining from denying or limiting equal access for all persons, including detainees, to health services,” Communication 379/09 – Monim Elgak, Osman Hummeida and Amir Suliman (represented by FIDH and OMCT) v Sudan para 136. Additionally, the Commission has also observed that “in the event of detention it is even more evident to the extent that detention centers are its exclusive preserve, hence the physical integrity and welfare of detainees is the responsibility of the competent public authorities” Communication 105/93 – 128/94 – 130/94 – 152/96 – Media Rights Agenda & Constitutional Rights Project v Nigeria (1998) ACHPR, para 91.
RIGHT TO HEALTH UNDER INTERNATIONAL LAW
Article 16 of the Charter draws inspiration from many international and regional instruments: it seeks to augment the feeble, in some cases inadequate, legislations in many African countries. For example, Article 25 (1) Universal Declaration of Human Rights, UDHR (1948) provides as follows:
“Everyone has the right to a standard of living adequate for the health and well-being of himself and of his family, including food, clothing, housing and medical care and necessary social services, and the right to security in the event of unemployment, sickness, disability, widowhood, old age or other lack of livelihood in circumstances beyond his control.”
Also, the Article 12 (1) International Covenant on Economic, Social and Cultural Rights, ICESCR (1966) provides as follows:
“The States Parties to the present Covenant recognize the right of everyone to the enjoyment of the highest attainable standard of physical and mental health.”
Additionally, Article 12 of the Convention on the Elimination of All Forms of Discrimination against Women, CEDAW (1979) provides as follows:
“States Parties shall take all appropriate measures to eliminate discrimination against women in the field of health care in order to ensure, on a basis of equality of men and women, access to health care services, including those related to family planning.”
THE PUROHIT EFFECT
Owing to the recommendation of the Commission in Purohit and Moore (supra), many African states have improved the standard of care giving to people with disabilities; in fact, many have passed legislations safeguarding the physical and mental health of people with disabilities. A case in point is the Gambia, which has now enacted the Persons with Disabilities Bill, 2020 and built a new psychiatric unit in accordance with the recommendations of the Commission.
However, the Commission’s recommendation that the Gambia “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” is yet to be realized. The Gambia has an obligation to implement the obligations of the Commission. Therefore, the draft Mental Health Bill must be passed into law.
