Suriname have been denied the right to seek judicial protection against alleged violations of their collective property rights precisely because a judge considered they did not have the legal capacity necessary to request such protection. This, the Court opined, placed the Saramaka people in a vulnerable situation where individual ‘property rights’ may trump their rights over communal property, and where the Saramaka people may not seek, as a juridical personality, judicial protection against violations of their ‘property rights’ recognised underArticle 21 of the Convention. 194. As is in the instant case before the African Commission, the State of Suriname acknowledged that its domestic legal framework did not recognise the right of the members of the Saramaka people to the use and enjoyment of property in accordance with their system of communal property, but rather a privilege to use land. It also went on to provide reasons, as to why it should not be held accountable for giving effect to the Saramaka claims to a right to property, for example because the land tenure system of the Saramaka people, particularly regarding who owns the land, presents a practical problem for state recognition of their right to communal property. The IACtHR rejected all of the State’s arguments. In the present communication, the High Court of Kenya similarly dismissed any claims 98 based on historic occupation and cultural rights. 195. The IACtHR went further to say that, in any case, the alleged lack of clarity as to the land tenure system of the Saramakas should not present an insurmountable obstacle for the State, which has the duty to consult with the members of the Saramaka people and seek clarification of this issue, in order to comply with its obligations under Article 21 of the Convention. 196. In the present communication, the Respondent State (the Kenyan Government) during the oral hearings argued that legislation or special treatment in favour of the Endorois might be perceived as being discriminatory. The African Commission rejects that view. The African Commission is of the view that the Respondent State cannot abstain from complying with its international obligations under the African Charter merely because it might be perceived to be discriminatory to do so. It is of the view that in certain cases, positive discrimination or affirmative action helps to redress imbalance. The African Commission shares the Respondent State’s concern over the difficulty involved; nevertheless, the State still has a duty to recognise the right to property of members of the Endorois community, within the framework of a communal property system, and establish the mechanisms necessary to give domestic legal effect to such right recognised in the Charter and international law. Besides, it is a well established principle of international law that unequal treatment towards persons in unequal 99 situations does not necessarily amount to impermissible discrimination. Legislation that recognises said differences is therefore not necessarily discriminatory. 197. Again drawing on the Saramaka v Suriname case, which confirms earlier jurisprudence of 100 101 the Moiwana v Suriname, Yakye Axa v Paraguay , Sawhoyamaxa v Paraguay , and Mayagna 102 Awas Tingni v Nicaragua; the Saramaka case has held that Special measures of protection are owed to members of the tribal community to guarantee the full exercise of their rights. The IACtHR stated that based on Article 1(1) of the Convention, members of indigenous and tribal communities require special measures that guarantee the full exercise of their rights, particularly with regard to their enjoyment of ‘property rights’ in order to safeguard their physical and cultural survival. 198. Other sources of international law have similarly declared that such special measures are necessary. In the Moiwanacase, the IACtHR determined that another Maroon community living in Suriname was also not indigenous to the region, but rather constituted a tribal community that settled th th in Suriname in the 17 and 18 century, and that this tribal community had“a profound and allencompassing relationship to their ancestral lands” that was centred, not “on the individual, but rather on the community as a whole.” This special relationship to land, as well as their communal concept of ownership, prompted the Court to apply to the tribal Moiwana community its jurisprudence regarding indigenous peoples and their right to communal property under Article 21 of the Convention. 199. The African Commission is of the view that even though the Constitution of Kenya provides that Trust Land may be alienated and that the Trust Land Act provides comprehensive procedure for the assessment of compensation, the Endoroisproperty rights have been encroached upon, in particular by the expropriation and the effective denial of ownership of their land. It agrees with the Complainants that the Endorois were never given the full title to the land they had in practice before the British colonial administration. Their land was instead made subject to a trust, which gave them