167.
Article 8 of the Charter however allows restrictions on the exercise of freedom of
religion in the interest of maintaining law and order. Though the Respondent can interfere
with the religious practices of the Ogieks to protect public health and maintain law and
order, these restrictions must be examined with regard to their necessity and
reasonableness. The Court is of the view that, rather than evicting the Ogieks from the
Mau Forest, thereby restricting their right to practice their religion , there were other less
onerous measures that the Respondent could have put in place that would have ensured
their continued enjoyment of this right while ensuring maintenance of law and order and
public health . These measures include undertaking sensitisation campaigns to the
Ogieks on the requirement to bury their dead in accordance with the requirements of the
Public Health Act and collaborating towards maintaining the religious sites and waiving
the fees to be paid for the Ogieks to access their religious sites.
168.
On the contention that the Ogieks have abandoned their religion and
converted to Christianity, the Court notes from the records before it, specifically
from the testimony of the Applicant's witnesses that , not all the Ogieks have
converted to Christianity. Indeed, the Respondent has not submitted any
evidence to support its position that the adoption of Christianity means a total
abandonment of the Ogiek traditional religious practices . Even though some
members of the Ogieks might have been converted to Christianity, the evidence
before this Court show that they still practice their traditional religious rites.
Accordingly, the alleged transformation in the way of life of the Ogieks and their
manner of worship cannot be said to have entirely eliminated their traditional
spiritual values and rituals .
169.
From the foregoing, the Court is of the view that given the link between indigenous
populations and their land for purposes of practicing their religion , the evictions of the
Ogieks from the Mau Forest rendered it impossible for the community to continue its
religious practices and is an unjustifiable interference with the freedom of religion of
the Ogieks. The Court therefore finds that the Respondent is in violation of Article 8
of the Charter.
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