Cry of minority groups or political tact at reforms talks by those mandated to speak?

Other proposed counties in the petition presented to The National Dialogue Committee (NADCO) by the 26 MPs and other leaders include Mwingi in Kitui county, Gucha (Kisii), Ijara (Garissa), Nakuru West (Nakuru) and Wajir South (Wajir).

The MPs told NADCO that creating counties for their communities will create inclusivity and representation of all Kenyans because their people are currently marginalized with a lack of equal opportunities in their current counties.

Kuria East MP Marwa Kitayama who chairs the group strongly argues that the 47 counties as currently drawn are discriminatory and disadvantageous to some groups.

The demands are however not new because four years ago other Kuria leaders led by the former High Commissioner to Nigeria Dr Wilfred Machage (deceased) presented a similar petition to the Building Bridges Initiative (BBI) team that was chaired by the late Mohammed Yusuf Haji.

"We presented the same proposal to the BBI team which was heavily referenced but only one sentence from our case was included in the final report," said former Kuria East MP Marwa Maisori before President Uhuru Kenyatta and Raila Odinga released the report.

Both Kitayama and his predecessor Maisori also claim that the creation of Kuria County had been considered in the Bomas draft only to be dropped at the Naivasha retreat by the Parliamentary Select Committee (PSC) in 2010.

Critics however argue that counties like Migori are cosmopolitan with other groups like Luhyas, Kisiis, and Somali, among others, residing there and that the Kuria leaders are interested in creating more positions for themselves.

Prof Gitile Naituli of Multi-Media University, who has written extensively on devolution and its merits argues that the framers of the Constitution erred when they included the marginalisation terminology in the Constitution.

"Marginalisation was a wrong term because it can only apply if there are active laws intended to discriminate other Kenyans from either doing business, going to school or enjoying any other right," says Naituli.

He argues that historical flaws have been used to burden some communities with the guilt of being labelled perpetrators for something they have not done and those who think they are victims with an urge for a false entitlement.

He gave an example of a county like Garissa and others in Northern Kenya that are said to be marginalized because they have no roads and electricity when there is more poverty in places like Murang'a.

"At least each family in Garissa county has herds of goats, cattle and camels, unlike some of these places, including mushrooming slums in town and cities where people are termed privileged and yet they live in extreme poverty with nothing," he argues.

At the Bomas talks, co-chairperson Kimani Ichung'wah has also repeatedly wondered how people from some of those areas are marginalized when they are serving either as Senators, Woman Representative or even County Assembly Speaker in their current counties.

A case in point is Trans Nzoia County, where the current Senator Allan Chesang and the Woman Rep Lilian Siyoi both hail from the Sabaot community, which is also demanding its own Mt Elgon County.

Prof Naituli further contends that the current counties are far too many and need to be significantly reduced for all the money to be used in developing industries and manufacturing plants across the country to create jobs and development, including in the so-called marginalized areas instead of paying salaries.

"Most of these discrimination claims are baseless because for example in Meru where I come from, the Nyambene were the aristocrats and refused to go to school because they didn't like the Mzungu (white man) when they introduced schools, while the Imenti embraced it. How is that marginalisation?," asks Naituli.

Since the year 2000, when the Prof Yash Pal Ghai team began the constitution review process, many small groups have rightfully demanded for services, infrastructure, representation and equity.

They include the Ogiek who largely reside either inside or alongside forests, the Sengwer, the Il-Chamus or Njemps, Terik, Watta, Yiaku, Ilyana, Elmolo and Watta peoples in the counties of West Pokot and Elgeyo Marakwet, Baringo, Nandi, Isiolo, Laikipia, Tana-River, Turkana and Kilifi.

A study carried out by the National Gender and Equality Commission (NGEC) in the last administration found that perpetual exclusion and inequalities among those communities are promoted by poverty, loss of identity, negative perceptions and stereotypes, historical and contemporary political exclusion and denial of land rights.

There is also erosion of cultural values and traditions, underrepresentation in all sectors and spheres of life, lack of access to government policies including subsidy interventions, little affirmative action and limited educational opportunities.

"The national and county government and private investors need to demonstrate the will to promote equality and freedom from discrimination by enforcing affirmative actions and deliberately increasing opportunities of the minority groups in education, wealth creation, employment, among other sectors of development," the report said.

In 2018, Amnesty International Kenya also released a report that criticized the brutal eviction of the Sengwer from Embobut Forest, describing it as flawed and illegal.

The report said the Sengwer, an indigenous community that resides around Embobut Forest and Cherangany forest was being forced from their homes and dispossessed of their ancestral lands by the grossly flawed, illegal and violent actions of the Kenyan government.

"The Sengwer people were never genuinely consulted nor was their free and informed consent ever obtained prior to their eviction from Embobut. This is a flagrant violation of Kenyan and international law," said Amnesty International Kenya's Executive Director, Irungu Houghton.

In January 2018, the EU suspended funding for the Kenya Water Towers Protection and Climate Change Mitigation and Adaptation Programme following the use of lethal force resulting in the death of one Sengwer man during forceful eviction from Embobut Forest.

Some leaders like former Trade Cabinet Secretary Moses Kuria have blamed Sessional Paper no 10 of 1965 for allegedly having created an unequal distribution of wealth by empowering some areas while marginalising others.

He argues that the Industrial Aggregation Parks he has been opening in many counties around the country will play a big role in correcting injustices by the founding fathers of the country.

"Laikipia was considered useless and so we are paying for that misadventure that happened 60 years ago, that is why you were left behind but now you will use your hides and skins to make shoes for export in this park," said Kuria while launching one of the parks in Rumuruti, Laikipia County.

Prof Naituli however disabused that argument instead blaming corruption and ethnic bigotry for the mess the country found itself in after that sessional paper became operational.

The Paper created African socialism with a focus on developing areas that had higher output and used the money to develop less potential regions, which he says was good thinking because Malaysia took and used it very well.

"They used that Paper but in 1975 Malaysia was still so poor to the extent that President Kenyatta gave them five million dollars from Kenya. It means Kenya was a donor country but now we are 200kms behind them," says Naituli.

International courts and tribunals have in the past intervened on behalf of indigenous communities that petitioned against harassment and discrimination by the Kenyan government.

The Centre for Minority Rights Developments (CEMIRIDE) and Minority Rights Group International (MRGI), two NGOs acting on behalf of the Ogiek community of the Mau Forest, submitted a complaint to the African Commission on Human and Peoples' Rights after they were evicted from Mau forest.

The African Court ordered the Kenyan government to reinstate earlier restrictions it had imposed on land transactions in the Mau Forest complex before the evictions as a provisional measure, to prevent the Ogiek people from further irreparable harm while the case was being examined.

In May 2017, the court ruled that Kenya had violated the rights of the Ogiek and should not have expelled them from their ancestral lands against their will, in the process depriving them of their food sources.

Amnesty International Kenya Chapter's Houghton Irungu said the judges recognized that the evictions rendered it impossible for them to continue their religious practices which were all linked to religious sites in the Mau Forest, and it also greatly affected their ability to continue their traditions.