Substance
Right to culture – article 17(2) & (3)

The right to culture ensures protection of the individual’s ability to participate in the cultural
life of their community and imposes an obligation on the state to promote and protect the
traditional life of the community. This duty goes beyond the negative obligation of the state
to refrain from destroying or deliberately weakening cultural minorities but requires the state
to respect and protect the cultural heritage essential to a group’s identity. In this regard,
culture must be construed in its widest sense to encompass the way of life of a particular
people including their language, symbols, means of economic survival, and spiritual
ceremonies. In the context of indigenous communities, the preservation of their culture is of
particular importance given their vulnerability to exclusion, discrimination and forced
assimilation (African Commission on Human and Peoples’ Rights v Kenya, application
006/2012, Judgement, 26 May 2017, paras 177, 178, 179, 180). Stagnation or the existence of
a static way of life is not a defining element of culture or cultural distinctiveness as culture
changes over time (African Commission on Human and Peoples’ Rights v Kenya, application
006/2012, Judgement, 26 May 2017, para 185). The right to culture is however not absolute
and may be restricted in terms of article 27 of the Charter where there is a justified public
interest and the measures adopted are necessary and proportional to the interest sought to be
protected (African Commission on Human and Peoples’ Rights v Kenya, application
006/2012, Judgement, 26 May 2017, para 188).

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