131. In view of the foregoing considerations, the Court holds that by expelling the
Ogieks from their ancestral lands against their will, without prior consultation and
without respecting the conditions of expulsion in the interest of public need, the
Respondent violated their rights to land as defined above and as guaranteed by Article
14 of the Charter read in light of the United Nations Declaration on the Rights of
Indigenous Peoples of 2007.
C.
Alleged violation of Article 2 of the Charter
Applicant's Submission
132 . The Applicant submits that Article 2 of the Charter provides a non exhaustive list of prohibited grounds of discrimination and that the
expression "or other status", widens the list to include statuses not
expressly noted . The Applicant notes that any discrimination against the
Ogiek Community would fall within the definition of "race", "e thni c
group", "religion " and "social origin" referred to in Article 2. The
Applicant urges the Court to act in line with the jurisprudence of other
regional human rights bodies and maintains that discrimination on
grounds of ethnic origin is not capable of objective justification .
133. According to the Applicant, the differential treatment of the Ogieks
and other similar indigenous and minority groups within Kenya, in
relation to the lack of respect for their property rights , religious and
cultural rights , and right to life , natural resources and development
under the relevant laws , constitutes unlawful discrimination and is a
violation of Article 2 of the Charter . The Applicant stresses that the
Respondent has , since independence , been pursuing a policy of assimilation
and marginalisation , presumably in an attempt to ensure nationa l unity and,
in the case of land and natural re so urce rights , in the name of conservation
of the Mau Forest. According to the Applicant, while such aims of national
unity or conservation may be legitimate and serve the common interest, the
means employed, including the non- recognition of the tribal and ethnic
identity
of
the
Ogieks
and
their
38
corresponding
rights
is
entirely
Select target paragraph3
Connect to a paragraph
Connect to an entity
Disable highlights
Add to table of contents