The Prohibition of Torture and Ill-treatment in the African Human Rights System:
A HANDBOOK FOR VICTIMS AND THEIR ADVOCATES
although it acknowledged ‘the obvious danger that normal safeguards on the treatment of prisoners will be lacking’.217
e.
Detention on Grounds of Mental Heath
In Purohit and Moore,218 the complainants alleged that the mental health regime in
The Gambia was dehumanizing and incompatible with Article 5 of the Charter.
The Lunatics Detention Act of 1917 defined persons with mental health problems
as ‘lunatics’ and ‘idiots’ and prescribed certification procedures that were not subject to oversight or effective mechanisms of control. The African Commission held
that branding persons with mental illness as ‘lunatics’ and ‘idiots’ had the effect of
dehumanizing them and denying them dignity contrary to Article 5 of the African
Charter. The Commission explained its decisions as follows:
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.” 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 beings. Like any other human being,
mentally disabled persons or persons suffering from mental illness 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.219
It is the right to dignity, as such, and not the guarantee against torture or ill-treatment that underlies this finding. In the words of the Commission, 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’.220 However, the Commission rejected the argument that the ‘automatic’ detention of persons believed to be mentally ill or disabled, which effectively excludes
the possibility of reviewing the diagnosis, violates the prohibition of ‘arbitrary’
detention. In the Commission’s view, persons who have been institutionalised are
not included within the protective scope of Article 6, which deals with ‘liberty and
security’ and prohibiting arbitrary arrest and detention.221
217
218
219
220
221
58
ACHPR, Civil Liberties Organisation v. Nigeria, Comm. No. 151/96, 26th Ordinary Session (15 November
1999), para. 26.
ACHPR, Purohit and Moore v. The Gambia, Comm. No. 240/2001.
Ibid., paras. 59-60.
Ibid., para. 57.
In violation of Article 6 of the African Charter; see ibid., paras. 64-68. The ACHPR stated, ‘Article 6
of the African Charter was not intended to cater for situations where persons in need of medical
assistance or help are institutionalized’, para. 68.
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