Respondent's Submission
213.
The Respondent made no submissions on the alleged violation of Article 1 of the
Charter.
The Court's Assessment
214.
Article 1 of the Charter declares that
"The Member States of the Organization of African Unity parties to the present
Charter shall recognise the rights, duties and freedoms enshrined in this Charter
and shall undertake to adopt legislative or other measures to give effect to them".
215. The Court observes that Article 1 of the Charter imposes on State Parties
the duty to take all legislative and other measures necessary to give effect to
the rights and freedoms guaranteed in the Charter.
216.
In the instant case , the Court observes that by enacting its Constitution in
2010, the Forest Conservation and Management Act No. 34 of 2016 and the
Community Land Act , Act No. 27 of 2016 , the Respondent has taken some
legislative measures to ensure the enjoyment of rights and freedoms
protected under the Charter. However, these laws were enacted relatively
recently. This Court has also found that the Respondent failed to recognise the
Ogieks, like other similar groups, as a distinct tribe, leading to denial of access to their
land in the Mau Forest and the consequential violation of their rights under Article 2,
8, 14, 17(2) and (3), 21 and 22. In addition to these legislative lacunae, the
Respondent has not demonstrated that it has taken other measures to give effect to
these rights.
217.
In view of the above, the Respondent has violated article 1 of the Charter by not
taking adequate legislative and other measures to give effect to the rights enshrined
under article 2, 8, 14, 17 (2) and (3), 21 and 22 of the Charter.
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