th
17. On 9 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
st
Commission with responses to the questions raised by the African Commission at its 31 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.
st
nd
th
19. At the 31 Ordinary Session held from 2 to 16 May 2002 in Pretoria, South Africa, the African
Commission considered the communication and it was declared admissible.
th
20. On 29 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 three (3) months.
nd
th
rd
21. At its 32 Ordinary Session held from 17 to 23 October in Banjul, The Gambia, the African
Commission decided to defer consideration of the communication on the merits and the parties were
informed accordingly.
th
22. By a Note Verbale dated 30 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 two
(2) months.
rd
th
th
23. At its 33 Ordinary Session held from 15 to 29 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 [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.
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 [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 Gambian Constitution.