142. The Court accordingly finds that, if other groups which are in the same category of communities, which lead a traditional way of life and with cultural distinctiveness highly dependent on the natural environment as the Ogieks , were granted recognition of their status and the resultant rights, the refusal of the Respondent to recognise and grant the same rights to the Ogieks, due to their way of life as a huntergatherer community amounts to ' distinction ' based on ethnicity and/or 'other status' in terms of Article 2 of the Charter. 143. With regard to the Respondent's submission that, following the adoption of a new Constitution in 2010, all Kenyans enjoy equal opportunities in terms of education , health , employment , and access to justice and there is no discrimination among different tribes in Kenya including the Ogieks, the Court notes that indeed the 2010 Constitution of Kenya recognises and accords special protection to indigenous populations as part of " marginalised community " and the Ogieks could theoretically fit into that category and benefit from constitutional safeguards. the responsibility of the protection of such All the same, this does not diminish the Respondent with respect to the violations of the rights of the Ogieks not to be discriminated against between the time the Respondent became a Party to the Charter and when the Respondent 's new Constitution was enacted. 144. be In addition, as stated above, the prohibition of discrimination may not fully guaranteed with the enactment of laws which condemn discrimination; the right can be effective only when it is actually respected and , in this vein, the persisting eviction of the Ogieks, the failure of the authorities of the Respondent to stop such evictions and to comply with the decisions of the national courts demonstrate that the new Constitution and the institutions which the Respondent has set up to remedy past or on-going injustices are not fully effective.