All are not equal.

Perhaps I am not imaginative enough. Perhaps I do not have the capacity to ask the right question in order to get the right answer. Perhaps I have been too long in the wrong company. Whatever the reason, I cannot understand why the civil society industry is proclaiming outrage at the "lack of co-operation" by the Government of Kenya in relation to the long-stalled trial of Uhuru Kenyatta. It must be my lack of imagination because I believe the situation is plain enough to understand without searching for more complex "facts."

There are only two ways to examine the matter. Neither of them will make the civil society industry happy. The first, obviously, is that "the Government of Kenya has refused to co-operate." We are not small children in need of adult supervision, I believe. We are not naive. We are not idiots. We know what we know because we have the benefit of experience. So I cannot understand why the civil society could not anticipate this non-co-operation. This is not something that was out of the realm of the possible; it could have been countered by deft footwork, planning and astute political tea-leaf reading.

I have no doubt that the Attorney-General of Kenya spoke the truth each time he appeared before the Trial Chamber Vb of the International Criminal Court and detailed the elements of the co-operation of the Government of Kenya with the Court. I also have no doubt that the co-operation he detailed before the three judges falls far below what the Office of the Prosecutor would consider "full" co-operation. It all depends on who was in charge of doing what a what time and with what facilities and in what context.

When the Government of Kenya brings its might to bear against you it can be surprisingly efficient and effective. But if it suspects that it is being challenged, even by a powerful foreign court, it will do what it does best; it will marshall its resources, and it will apply them to its survival. The many elements that make up the Government of Kenya are like white blood cells and anti-bodies designed to destroy pathogens in the bloodstream. The ICC is a pathogen. It must be stopped or destroyed.

The second, of course, is the more plausible: the Office of the Prosecutor should not have brought the Uhuru Kenyatta case to the court and the civil society industry should not have underestimated the myopia of Kenyans. Philip Waki knew that Kenyans would do nothing about the violence. He had seen it before. So he demanded a local mechanism to investigate all the cases related to the violence. 

By publishing a secret list of twenty persons he held most responsible for the violence, Justice Waki was not saying that all the other complaints should be forgotten; he simply wanted the small fish to share the dock with the big fish, reinforcing the idea that all are equal before the law. The civil society industry and the Office of the Prosecutor failed to appreciate this subtle distinction and pursued headlines instead of justice for the victims.

Mr Kenyatta's case may never start. Too much time has passed. Too many witnesses have despaired at the delay. Too many victims have been revictimised. The crimes have become political footballs, used to win elections. The victims - survivors - have become pawns in political games. There might have been a moment when there was concern for their welfare. That moment is no more. Whether they ever recover seems not to matter to the ICC or their own government or their fellow citizens. It seems that the moment we find ourselves in is one where opportunists will milk the milch cow that is the ICC for all it is financially and politically worth. And then kill the cow once and for all. (For its skin.)