lost their distinctive cultural identity , the Court reiterates that the
Respondent has not sufficiently demonstrated that this al leged shift and
transformation in the lifestyle of the Ogieks has entire ly eliminated their
cultural distinctiveness. In this vein, the Court stresses that stagnation
or the existence of a static way of life is not a defining element of cu lture
or cultural distinctiveness . It is natural that some aspects of indigenous
populations ' culture such as a certain way of dressing or group symbols
could change over time. Yet , the values , mostly, the invisible traditional
values embedded in their self-identification and shared mentality often
remain unchanged .
186.
In so far as the Ogiek population is concerned, the testimony tendered by Mrs.
Mary Jepkemei, a member of the Ogiek Community, attests that the Ogieks still have
their traditional values and cultural ceremonies which make them distinct from other
similar groups. In addition, the Court notes that, to some extent, some of the alleged
changes in the way the Ogieks used to live in the past are caused by the restrictions
put in place by the Respondent itself on their right to access their land and natural
environment. 56
187. With respect to the second contention that the eviction measures were in the public
interest of preserving the natural environment of the Mau Forest Complex, the Court
first notes that Article 17 of the Charter does not provide exceptions to the right to
culture. Any restrictions to the right to culture shall accordingly be dealt with in
accordance with Article 27 of the Charter, which stipulates that:
"1. Every individual shall have duties towards his family and society, the State and
other legally recognised communities and the international community.
2. The rights and freedoms of each individual shall be exercised with due regard
to the rights of others, collective security, morality and common interest."
188.
In the instant case, the restriction of the cultural rights of the Ogiek population to
preserve the natural environment of the Mau Forest Complex may in principle be justified
56
On the same, see IACtHR, Case of the Sawhoy amaxa Indigenous Community v Paraguay, Judgment of
29 March 29 2006 (Merits, Reparations and Costs) paragraphs 73(3) to 73(5).
56
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