Kenyan legislation

International Crimes Act

Edition: 2023-12-11 · In force

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Part I – PRELIMINARY

1. Short title

This Act may be cited as the International Crimes Act.

2. Interpretation

(1)In this Act, unless the context otherwise requires—"Appeals Chamber" means the appeals Chamber of the ICC;"Cabinet Secretary" means the Cabinet Secretary for the time being responsible for matters relating to national security;"forfeiture order" means an order made by the ICC under paragraph 2(b) of article 77 of the Rome Statute or under the ICC Rules for the forfeiture of property, and includes a forfeiture order that is treated for the purposes of enforcement as a pecuniary penalty order under section 126;"ICC" means the International Criminal Court established by the Rome Statute, and includes any of the organs of the Court that are referred to in that Statute;"ICC prisoner" means a person who is—

(a)sentenced to imprisonment by the ICC; or

(b)the subject of a request by the ICC under section 166(1)(b) to be held in custody during a sitting of the ICC in Kenya;

"ICC Rules" means the Rules of Procedure and Evidence made under article 51 of the Rome Statute;"international crime" means, in relation to the ICC, a crime in respect of which the ICC has jurisdiction under article 5 of the Rome Statute;"Kenyan prisoner" or "prisoner" means a person who is for the time being in the legal custody of the officer in charge of any Kenyan prison, whether or not that person has been convicted of an offence;"official", in relation to the International Criminal Court, means the Prosecutor, Registrar, Deputy Prosecutor, Deputy Registrar or other staff of the organs of the Court;"person" means a natural person, a company or association or body of persons corporate or unincorporated;"Pre-Trial Chamber" means the Pre-Trial Chamber of the ICC;"property" means real or personal property of every description, whether situated in Kenya or elsewhere and whether tangible or intangible, and includes an interest in any such real or personal property;"Prosecutor" means the Prosecutor of the ICC;"Rome Statute" means the Rome Statute of the International Criminal Court, adopted by the United Nations Diplomatic Conference of Plenipotentiaries on 17th July, 1998, as corrected by the procès-verbaux of 10th November, 1998, 12th July, 1999, 30th November, 1999 and 8th May, 2000, a copy of the English text of which is set out in the Schedule to this Act."Trial Chamber" means the Trial Chamber of the ICC.

(2)In this Act—

(a)a reference to a request by the ICC for assistance includes a reference to a request by the ICC for co-operation;

(b)a reference to a request by the ICC for assistance under a specified provision or in relation to a particular matter includes a reference to a request by the ICC for co-operation under that provision or in relation to that matter;

(c)a reference to a sentence of imprisonment imposed by the ICC includes a reference to a sentence of imprisonment extended by the ICC (whether for the non-payment of a fine or otherwise);

(d)a reference to a sentence of imprisonment imposed by the ICC for an international crime or an offence against the administration of justice includes a reference to a sentence of imprisonment imposed by the ICC for non-payment of a fine that was a penalty for that crime or offence, as the case may be.

3. Act to bind the Government

This Act shall be binding on the Government.

4. Rome Statute to have force of law

(1)The provisions of the Rome Statute specified in subsection (2) shall have the force of law in Kenya in relation to the following matters—

(a)the making of requests by the ICC to Kenya for assistance and the method of dealing with those requests;

(b)the conduct of an investigation by the Prosecutor or the ICC;

(c)the bringing and determination of proceedings before the ICC;

(d)the enforcement in Kenya of sentences of imprisonment or other measures imposed by the ICC, and any related matters;

(e)the making of requests by Kenya to the ICC for assistance and the method of dealing with those requests.

(2)The relevant provisions of the Rome Statute are—

(a)Part 2 (which relates to jurisdiction, admissibility, and applicable law);

(b)Part 3 (which relates to general principles of criminal law);

(c)articles 51 and 52 (which relate respectively to the Rules of Procedure and Evidence, and Regulations of the Court);

(d)Part 5 (which relates to the investigation and prosecution of crimes within the jurisdiction of the ICC);

(e)Part 6 (which relates to the conduct of trials);

(f)Part 7 (which relates to penalties);

(g)Part 8 (which relates to appeals and revision of acquittals, convictions, or sentences);

(h)Part 9 (which relates to international co-operation and judicial assistance);

(i)Part 10 (which relates to the enforcement of sentences and other measures imposed by the ICC).

5. Obligations imposed by Rome Statute or ICC Rules

For the purposes of any provision of the Rome Statute or the ICC Rules that confers or imposes a power, duty or function on a State, that power, duty or function may be exercised or carried out on behalf of the Government of Kenya by the Director of Public Prosecutions, if this Act makes no other provision in that behalf.[Act No. 19 of 2023, Sch.]

Part II – INTERNATIONAL CRIMES AND OFFENCES AGAINST ADMINISTRATION OF JUSTICE

International Crimes

6. Genocide, etc.

(1)A person who, in Kenya or elsewhere, commits—

(a)genocide;

(b)a crime against humanity; or

(c)a war crime, is guilty of an offence.

(2)A person who, in Kenya or elsewhere, conspires or attempts to commit, or is an accessory after the fact in relation to, or who counsels in relation to, an offence mentioned in subsection (1) is guilty of an offence.

(3)A person who commits an offence under subsection (1) or (2) shall on conviction be liable—

(a)to be punished as for murder, if an intentional killing forms the basis of the offence; or

(b)to imprisonment for life or for a lesser term, in any other case.

(4)In this section—"crime against humanity" has the meaning ascribed to it in article 7 of the Rome Statute and includes an act defined as a crime against humanity in conventional international law or customary international law that is not otherwise dealt with in the Rome Statute or in this Act;"genocide" has the meaning ascribed to it in article 6 of the Rome statute;"war crime" has the meaning ascribed to it in paragraph 2 of article 8 of the Rome Statute.[Cf. Rome Statute, articles 6 to 8.]

7. General principles of criminal law

(1)For the purposes of proceedings for an offence under section 6, the following provisions of the Rome Statute shall apply, with any necessary modifications—

(a)article 20 (which relates to crimes for which a person has previously been acquitted or convicted);

(b)article 21 (which deals with the law applicable at proceedings at international level);

(c)paragraph 2 of article 22 (which relates to principles of interpretation to be applied to the definition of crimes);

(d)article 25 (which relates to principles of individual criminal responsibility);

(e)article 26 (which relates to the exclusion of jurisdiction over persons under eighteen years);

(f)article 28 (which relates to the responsibility of commanders and other superiors);

(g)article 29 (which excludes any statute of limitations);

(h)article 30 (which relates to the mental element of crimes);

(i)article 31 (which specifies grounds for excluding criminal responsibility);

(j)article 32 (which relates to mistakes of fact or law);

(k)article 33 (which relates to superior orders and prescription of law).

(2)For the purposes of any such proceedings—

(a)the provisions of Kenyan law and the principles of criminal law applicable to the offence under Kenyan law shall apply; and

(b)a person charged with the offence may rely on any justification, excuse, or defence available under the laws of Kenya or under international law:

Provided that—

(i)in the event of any inconsistency between the provisions specified in subsection (1) and the provisions and principles specified in paragraph (a) of this subsection, the provisions specified in subsection (1) shall prevail; and

(ii)the fact that an act done outside Kenya is not an offence under the law of the place where it was done shall not be held to be any justification, excuse, or defence.

(3)For the purposes of subsection (1), the articles of the Rome Statute specified in that subsection (other than article 20) shall apply as if—

(a)a reference to the ICC were a reference to the Kenyan court exercising jurisdiction in respect of the proceedings; and

(b)a reference to the Rome Statute included a reference to this Act.

(4)For the purposes of interpreting and applying articles 6 to 8 of the Rome Statute in proceedings for an offence under section 6—

(a)the Kenyan Court exercising jurisdiction in the proceedings shall have regard to any elements of crimes adopted or amended in accordance with article 9 of the Rome Statute; and

(b)provisions of the Penal Code (Cap. 63), to the extent of any inconsistency with the application of paragraph (a), shall not apply.

8. Jurisdiction to try offences under section 6

(1)A person who is alleged to have committed an offence under section 6 may be tried and punished in Kenya for that offence if—

(a)the act or omission constituting the offence is alleged to have been committed in Kenya; or

(b)at the time the offence is alleged to have been committed—

(i)the person was a Kenyan citizen or was employed by the Government of Kenya in a civilian or military capacity;

(ii)the person was a citizen of a state that was engaged in an armed conflict against Kenya, or was employed in a civilian or military capacity by such a state;

(iii)the victim of the alleged offence was a Kenyan citizen; or

(iv)the victim of the alleged offence was a citizen of a state that was allied with Kenya in an armed conflict; or

(c)the person is, after commission of the offence, present in Kenya.

(2)A trial authorised by this section to be conducted in Kenya shall be conducted in the High Court.

Offences against Administration of Justice

9. Bribery of judges and officials

(1)A person who, being a judge or an official of the ICC, corruptly accepts, obtains, agrees to accept or attempts to obtain for himself or any other person any money, valuable consideration, office, place or employment—

(a)in respect of anything done or omitted, or to be done or omitted, by him in his official capacity; or

(b)with intent to interfere in any other way with the administration of justice of the ICC, is guilty of an offence and liable on conviction to imprisonment for a term of not more than fourteen years.

(2)A person who corruptly gives or offers to a judge or an official of the ICCany money, valuable consideration, office, place or employment—

(a)in respect of anything done or omitted, or to be done or omitted, by him in his official capacity; or

10. Obstructing justice

(1)A person who wilfully attempts in any manner to obstruct, pervert or defeat the course of justice of the ICC is guilty of an offence and liable on conviction to imprisonment for a term of not more than five years.

(2)Without limiting the generality of subsection (1), a person shall be deemed wilfully to attempt to obstruct, pervert or defeat the course of justice if, in any existing or proposed proceedings of the ICC, he—

(a)dissuades or attempts to dissuade a person by threats, bribes or other corrupt means from giving evidence; or

(b)accepts, obtains, agrees to accept or attempts to obtain a bribe or other corrupt consideration to abstain from giving evidence.

11. Obstructing officials

A person who resists or wilfully obstructs an official of the ICC in the execution of his duty, or any person lawfully acting in aid of such an official, is guilty of an offence and liable on conviction to imprisonment for a term of not more than two years.

12. Perjury

(1)A person who, with intent to mislead, makes a false statement under oath or solemn affirmation before a judge of the ICC or an official of that Court who is authorized by the Court to permit statements to be made before him, knowing that the statement is false, is guilty of the offence of perjury and liable on conviction to imprisonment for a term of not more than seven years.

(2)Subsection (1) shall apply—

(a)whether or not the statement is made in judicial proceedings of the ICC; and

(b)whether the statement is made by affidavit, solemn declaration or deposition or orally.

(3)Subsection (1) shall not apply to a statement that is made by a person who is not specially permitted, authorized or required by law to make that statement.

13. Witness giving contradictory evidence

(1)A person who—

(a)being a witness in any proceedings of the ICC, gives evidence with respect to any matter of fact or knowledge;

(b)later, in any proceedings of the Court, gives evidence that is contrary to his previous evidence; and

(c)in giving his evidence in either proceedings, does so with intent to mislead, is guilty of an offence and liable on conviction to imprisonment for a term of not more than two years, whether or not the prior or later evidence is true.

(2)In this section, "evidence" does not include evidence that is not material.

(3)If a person is charged with an offence under this section, a certificate that specifies with reasonable particularity the proceedings in which the person is alleged to have given the evidence in respect of which the offence is charged shall be evidence that it was given in proceedings of the ICC.

(4)A certificate referred to in subsection (3) shall be admissible without proof of the signature or official character of the person by whom the certificate purports to be signed, if it purports to be signed by the Registrar of the ICC or another official having the custody of the record of the proceedings concerned or by his lawful deputy.

14. Fabricating evidence

Every person who, with intent to mislead, fabricates anything with intent that it be used as evidence in any existing or proposed proceedings of the ICC, by any means other than perjury or incitement to perjury, is guilty of an offence and liable on conviction to imprisonment for a term of not more than seven years.

15. Offences relating to affidavits

A person who, in respect of any existing or proposed proceedings of the ICC—

(a)signs a document that purports to be an affidavit or statutory declaration and to have been sworn or declared before him when the document was not so sworn or declared or when he knows that he has no authority to administer the oath or declaration;

(b)uses or offers for use any document writing purporting to be an affidavit or statutory declaration that he knows was not sworn or declared, as the case may be, by the affiant or declarant or before a person authorized to administer the oath or declaration; or

(c)signs as affiant or declarant a document that purports to be an affidavit or statutory declaration and to have been sworn or declared by him, as the case may be, when the document was not so sworn or declared, is guilty of an offence and liable on conviction to imprisonment for a term of not more than two years.

16. Intimidation

Every person who, wrongfully and without lawful authority—

(a)for the purpose of compelling another person to abstain from doing anything that the person has a lawful right to do; or

(b)to do anything that the person has a lawful right to abstain from doing, in relation to any proceedings of the ICC, causes the person reasonably, in all the circumstances, to fear for their safety or the safety of anyone known to the person is guilty of an offence and liable on conviction to imprisonment for a term of not more than five years.

17. Retaliation against witnesses

(1)A person who, by act or omission, does any thing against a person or a member of the person’s family in retaliation for the person’s having given testimony before the ICC is guilty of an offence and liable on conviction to imprisonment for a term of not more than five years.

(2)A person who conspires or attempts to commit, or is an accessory after the fact in relation to, or counsels in relation to, an offence under subsection (1) is guilty of an offence and liable on conviction to imprisonment for a term of not more than five years.

18. Jurisdiction to try offences under sections 9 to 17

(1)A person who is alleged to have committed an offence under any of sections 9 to 17 may be tried and punished in Kenya for that offence if—

(a)the act or omission constituting the offence is alleged to have been committed in Kenya or on board an aircraft or vessel which is registered in Kenya; or

(b)at the time the offence is alleged to have been committed, the person was a Kenyan citizen or was employed by Kenya in a civilian or military capacity; or

(c)the person is, after commission of the offence, present in Kenya.

(2)A trial authorised by this section to be conducted in Kenya may be conducted in any court of competent jurisdiction.

19. Co-operation as regards offences against administration of justice

(1)If the ICC makes a request for assistance in any investigation or proceedings involving an offence against the administration of justice, that request shall be dealt with—

(a)in the case of a request for surrender—in the manner provided in Parts III and IV, which Parts shall apply with any necessary modifications and subject to any contrary provision in the Rome Statute or the ICC Rules;

(b)in the case of a request for enforcement of an order requiring reparation or the payment of a fine or a forfeiture order—in the manner provided in Parts III and VI, which Parts shall apply with any necessary modifications and subject to any contrary provision in the Rome Statute or the ICC Rules;

(c)in the case of a request for transit—in the manner provided in sections 131 to 133 and 145 to 151, which sections shall apply with any necessary modifications and subject to any contrary provision in the Rome Statute or the ICC Rules; and

(d)in the case of a request for any other type of assistance—in the manner provided in Parts III and V, which Parts (and, if applicable, Part VIII) shall apply with any necessary modifications and subject to any contrary provision in the Rome Statute or the ICC Rules.

(2)In addition to the grounds of refusal or postponement specified in Parts IV and V, a request for surrender or other assistance that relates to an offence involving the administration of justice may be refused if, in the opinion of the Cabinet Secretary or the Director of Public Prosecutions, as the case may be, there are exceptional circumstances that would make it unjust or oppressive to surrender the person or give the assistance requested.

(3)Where, pursuant to subsection (2), the Cabinet Secretary or the Director of Public Prosecutions is of the opinion that there are exceptional circumstances that would make it unjust or oppressive to surrender the person or give the assistance requested, the Cabinet Secretary or the Director of Public Prosecutions, as the case may be, shall give the reasons underlying his opinion.[Act No. 19 of 2023, Sch.]

Part III – GENERAL PROVISIONS RELATING TO REQUESTS FOR ASSISTANCE

20. Requests for assistance

(1)This Part shall apply to a request by the ICC for assistance that is made under—

(a)Part 9 of the Rome Statute, in relation to—

(i)the provisional arrest, the arrest, and the surrender to the ICC of a person in relation to whom the ICC has issued an arrest warrant or given a judgment of conviction;

(ii)the identification and whereabouts of persons or the location of items;

(iii)the taking of evidence, including testimony under oath, and the production of evidence, expert opinions, and reports necessary to the ICC;

(iv)the questioning of any person being investigated or prosecuted;

(v)the service of documents, including judicial documents;

(vi)facilitating the voluntary appearance of persons as witnesses or experts before the ICC;

(vii)the temporary transfer of prisoners;

(viii)the examination of places or sites, including the exhumation and examination of grave sites;

(ix)the execution of searches and seizures;

(x)the provision of records and documents, including official records and documents;

(xi)the protection of victims and witnesses and the preservation of evidence;

(xii)the identification, tracing and freezing, or seizure of proceeds, property and assets, and instrumentalities of crimes for the purpose of eventual forfeiture, without prejudice to the rights of bona fide third parties; or

(xiii)any other type of assistance that is not prohibited by the law of Kenya, with a view to facilitating the investigation and prosecution of crimes within the jurisdiction of the ICC; or

(b)any of the following provisions of the Rome Statute—

(i)paragraph 8 of article 19 (which relates to various steps that the Prosecutor may take with the authority of the ICC);

(ii)article 56 (which relates to various measures that can be taken by the Pre-Trial Chamber);

(iii)article 64 (which relates to various measures that can be taken by the Trial Chamber);

(iv)article 76 (which relates to the imposition of sentence by the Trial Chamber);

(v)article 109 (which relates to the enforcement of fines and forfeiture measures).

(2)Nothing in this section—

(a)limits the type of assistance that the ICC may request under the Rome Statute or the ICC Rules (whether in relation to the provision of information or otherwise); or

(b)prevents the provision of assistance to the ICC otherwise than under this Act, including assistance of an informal nature.

[Cf. Rome Statute, articles 86, 87(1)(a), 93(1).]

21. Requests to be made through authorised channel

(1)A request for assistance shall be made through an authorised channel and—

(a)in the case of a request to which Part IV applies, be transmitted to the Cabinet Secretary; or

(b)in any other case, be transmitted to the Director of Public Prosecutions or a person authorised by the Director of Public Prosecutions to receive requests.

(2)In this section, "authorised channel" means—

(a)the diplomatic channel to the Cabinet Secretary responsible for foreign affairs; or

(b)any other appropriate channel that Kenya may designate at the time it ratifies the Rome Statute or at any subsequent time in accordance with the ICC Rules.

(3)This section has effect subject to section 22.[Cf: Rome Statute, articles 87(1)(a) and (b)][Act No. 19 of 2023, Sch.]

22. Urgent requests

(1)In urgent cases a request for assistance (including a request for provisional arrest) may be—

(a)made using any medium capable of delivering a written record; or

(b)transmitted through the International Criminal Police Organisation or any other appropriate regional organisation, instead of through an authorised channel (as defined in section 21).

(2)If a request is made or transmitted in the first instance in the manner specified in subsection (1), it shall be followed as soon as practicable by a formal request transmitted in the manner specified in section 21.[Cf. Rome Statute articles 87.1(b), 91(1), 96(1).]

23. Execution of requests

(1)If the ICC makes a request for assistance, the request shall be dealt with in accordance with the relevant procedure under the law of Kenya (as provided in this Act).

(2)If the request for assistance specifies that it should be executed in a particular manner that is not prohibited by Kenyan law or by using a particular procedure that is not prohibited by Kenyan law, the Director of Public Prosecutions or the Cabinet Secretary, as the case may be, shall use his best endeavours to ensure that the request is executed in that manner or using that procedure, as the case may require.[Cf. Rome Statute articles 88, 99(1)][Act No. 19 of 2023, Sch.]

24. Consultation

(1)The Director of Public Prosecutions or the Cabinet Secretary, as the case may be, shall consult with the ICC without delay if—

(a)a request for assistance is received from the ICC that does not contain or is not accompanied by the appropriate information or the appropriate documents specified in articles 87, 91, 92, 93, or 96 of the Rome Statute;

(b)the ICC has not provided sufficient information for a request for assistance to be executed;

(c)in the case of a request for surrender—

(i)the person sought cannot be located in Kenya; or

(ii)it appears that the person in Kenya is clearly not the person named in the warrant or judgment, as the case may be;

(d)execution of a request for assistance in its current form would require the breach of an existing treaty obligation to another State; or

(e)for any other reason there are or may be difficulties with the execution of a request for assistance received from the ICC.

(2)Before refusing any request for assistance, the Director of Public Prosecutions or the Cabinet Secretary, as the case may be, shall consult with the ICC to ascertain whether the assistance sought could be provided—

(a)subject to conditions; or

(b)at a later date or in an alternative manner.

(3)Without limiting the types of conditions under which assistance may be provided, the Director of Public Prosecutions may agree to the transmission of documents or information to the Prosecutor on a confidential basis, on the condition that the Prosecutor will use them solely for the purpose of generating new evidence.

(4)If the Director of Public Prosecutions transmits documents or information subject to the condition specified in subsection (3), the Director of Public Prosecutions may subsequently consent to the disclosure of such documents or information for use as evidence under the provisions of Parts 5 and 6 of the Rome Statute and in accordance with the ICC Rules.[Cf. Rome Statute, articles 93 (5), 93 (8)(b) and (c), 97][Act No. 19 of 2023, Sch.]

25. Confidentiality of request

(1)A request for assistance and any documents supporting the request shall be kept confidential by the Kenyan authorities who deal with the request, except to the extent that the disclosure is necessary for execution of the request.

(2)Without limiting the generality of subsection (1), if the ICC requests that particular information that is made available with a request for assistance be provided and handled in a manner that protects the safety and physical or psychological well-being of any victims, potential witnesses, and their families, the Kenyan authorities shall use their best endeavours to give effect to that request.

(3)In this section, "Kenyan authorities" means—

(a)the Director of Public Prosecutions;

(b)the Cabinet Secretary;

(c)every member of the National Police Service;

(d)every prison officer; and

(e)every employee of or contractor engaged by a Kenyan agency that is authorised to deal with the request.

[Cf. Rome Statute, articles 87(3) and 87(4)][Act No. 19 of 2023, Sch.]

26. Response to be sent to ICC

(1)The Director of Public Prosecutions or the Cabinet Secretary, as the case may be, shall notify the ICC, without delay, of his response to a request for assistance and of the outcome of any action that has been taken in relation to it.

(2)If the Director of Public Prosecutions or the Cabinet Secretary decides, in accordance with the Rome Statute and this Act, to refuse or postpone the assistance requested, in whole or in part, the notice to the ICC shall set out the reasons for the decision.

(3)If the request for assistance cannot be executed for any other reason, the notice to the ICC shall set out the reasons for the inability or failure to execute the request.

(4)In the case of an urgent request for assistance, any documents or evidence produced in response shall, at the request of the ICC, be sent urgently to it.

(5)Documents or evidence provided or produced in response to a request for assistance from the ICC shall be transmitted to the ICC in their original language and form.[Cf. Rome Statute, articles 86, 90(8), 93(6)][Act No. 19 of 2023, Sch.]

27. Official capacity of person no bar to request

(1)The existence of any immunity or special procedural rule attaching to the official capacity of any person shall not constitute a ground for—

(a)refusing or postponing the execution of a request for surrender or other assistance by the ICC;

(b)holding that a person is ineligible for surrender, transfer, or removal to the ICC or another State under this Act; or

(c)holding that a person is not obliged to provide the assistance sought in a request by the ICC.

(2)Subsection (1) shall have effect subject to sections 62 and 115, but notwithstanding any other enactment or rule of law.[Cf. Rome Statute, article 27(2).]

Part IV – ARREST AND SURRENDER OF PERSONS TO ICC

Request for Arrest and Surrender

28. Request for arrest and surrender

(1)This Part shall apply to a request made by the ICC under paragraph 1 of article 89 of the Rome Statute for the arrest and surrender from Kenya of—

(a)a person in respect of whom the Pre-Trial Chamber has issued a warrant of arrest under article 58 or article 60 of the Rome Statute for an international crime; or

(b)a person who has been convicted by the ICC of an international crime.

(2)This Part shall apply to a request made under article 92 of the Rome Statute for the provisional arrest of a person accused or convicted of an international crime.

(3)The provisions of this Part applying in respect of—

(a)arrest where a request for surrender is received (sections 29 to 31);

(b)provisional arrest in urgent cases (sections 32 to 34);

(c)remand and bail (sections 35 to 38);

(d)eligibility for surrender (sections 39 to 42); and

(e)surrender and temporary surrender (sections 43 to 50), shall have effect subject to sections 51 to 62 (which prescribe restrictions on surrender and the execution of a request for surrender).

[Cf. Rome Statute, articles 58, 60(5), 91(2)-(4), 92(1).]

29. Cabinet Secretary to request issue of arrest warrant

(1)If a request for surrender is received, other than a request for provisional arrest referred to in section 28 (2), the Cabinet Secretary shall, if satisfied that the request is supported by the information and documents required by article 91 of the Rome Statute, notify a Judge of the High Court in writing that it has been made and request that the Judge issue a warrant for the arrest of the person whose surrender is sought.

(2)If a notice is sent to a Judge under subsection (1), the Cabinet Secretary shall also send to the Judge a copy of the request and supporting documents.[Cf. Rome Statute, article 59(1).]

30. Issue of arrest warrant

(1)After receiving a request under section 29, the Judge may issue a warrant in the prescribed form for the arrest of the person if the Judge is satisfied on the basis of information presented to him that—

(a)the person is or is suspected of being in Kenya or may come to Kenya;and

(b)there are reasonable grounds to believe that that person is the person to whom the request for surrender from the ICC relates.

(2)The Judge shall give reasons for the issue or refusal to issue a warrant under subsection (1).

31. Cancellation of warrant

(1)The Cabinet Secretary may at any time, apply to High Court for the cancellation of the warrant.

(2)If under this section the High Court orders the cancellation of a warrant, the warrant ceases to have effect and any person arrested under the warrant shall be released, unless the person is otherwise liable to be detained in custody.

Provisional Arrest in Certain Cases

32. Provisional arrest warrant

(1)A Judge of the High Court may issue a provisional warrant in the prescribed form for the arrest of a person if the Judge is satisfied on the basis of the information presented to him that—

(a)a warrant for the arrest of a person has been issued by the ICC or, in the case of a convicted person, a judgment of conviction has been given in relation to an international crime;

(b)the person named in the warrant or judgment is or is suspected of being in Kenya or may come to Kenya; and

(c)it is necessary or desirable for an arrest warrant to be issued urgently.

(2)A warrant may be issued under this section even though no request for surrender has yet been made or received from the ICC.[Cf. Rome Statute, article 92.]

33. Notice to be given to Cabinet Secretary

(1)If a Judge issues a provisional arrest warrant under section 32, the applicant for the warrant shall report the issue of the warrant to the Cabinet Secretary without delay.

(2)The applicant shall include in the report to the Cabinet Secretary a copy of the warrant issued by the ICC, or the judgment of conviction, as applicable, and the other documentary evidence that the applicant produced to the Judge.

34. Procedure where provisional arrest warrant issued

(1)If a person has been arrested on a provisional arrest warrant issued under section 32, the following provisions shall apply—

(a)the hearing of the proceedings shall not proceed until the High Court receives from the Cabinet Secretary a notice in writing stating that a request for the surrender of the person has been transmitted to the Cabinet Secretary in the manner specified in section 21;

(b)pending the receipt of the notice from the Cabinet Secretary, the proceedings may from time to time be adjourned;

(c)the High Court shall set a date by which the notice is to be transmitted to it, and in so doing shall have regard to—

(i)any provision in the ICC Rules that prescribes the maximum period for transmission by the ICC of the request and supporting documents to the requested State;

(ii)if there is no such provision, the time it is likely to take for the ICC to prepare and transmit the request and supporting documents to Kenya;

(iii)the time it is likely to take for the Cabinet Secretary to consider the request after receipt and for the notice to be transmitted to the High Court;

(d)if the High Court does not receive the notice within the time fixed by the Court under paragraph (c), and does not extend that time under subsection (2), the High Court shall discharge the person.

(2)The High Court may, from time to time, in its discretion, extend any time fixed by it under subsection (1)(c).[Cf. Rome Statute, article 92(1).]

Remand and Bail

35. Procedure following arrest

(1)A person arrested on a warrant issued under section 30 or section 32 shall, unless sooner discharged, be brought before the High Court as soon as possible.

(2)The person—

(a)is not entitled to bail as of right; and

(b)shall not be permitted to go at large without bail.

(3)If the High Court remands the person on bail, the Court may impose any conditions of bail it thinks fit.

(4)Without limiting the factors it may take into account in making a decision to grant bail, the High Court shall have regard to the following—

(a)the gravity of the alleged crimes;

(b)whether there are urgent and exceptional circumstances that favour the grant of bail; and

(c)whether necessary safeguards exist to ensure that Kenya can fulfil its duty under the Rome Statute to surrender the person to the ICC.

(5)In making a decision to grant bail, the High Court shall not be concerned to inquire whether any warrant of arrest or judgment issued by the ICC was properly issued in accordance with the Rome Statute.[Cf. Rome Statute, article 59 (2) - (4).]

36. Procedure for bail

(1)If an application for bail is made, the Cabinet Secretary shall notify the ICC, which may make recommendations to the Cabinet Secretary, which shall be conveyed to the High Court.

(2)Before rendering its decision, the High Court shall consider any recommendations that the ICC has made, including any recommendations on measures to prevent the escape of the person.

(3)If the person is granted bail, the Cabinet Secretary shall, if the ICC requests, provide periodic reports to the ICC on the person’s bail status.

(4)This section shall apply, with any necessary modifications, to any bail application made during the period until the person is surrendered to the ICC or discharged according to law.[Cf. Rome Statute, article 59(2) - (6).]

37. Powers of High Court

In proceedings under this Part, except as expressly provided in this Act or in regulations made under this Act, the High Court shall have the same jurisdiction and powers, and shall conduct the proceedings in the same manner, as if the person were charged with an offence alleged to have been committed within Kenyan jurisdiction.

38. Detention in place other than prison

(1)This section shall apply where the High Court orders the detention of a person at any time under this Part.

(2)If the High Court concludes that detaining the person in prison would risk the person’s life or health or be undesirable for any reason, the Court may order that the person be held in custody—

(a)at the place where the person is for the time being; or

(b)at any other place that the Court considers appropriate, having regard to the risk or reason involved.

(3)The person may be held as specified in subsection (2) until—

(a)the person can be detained in a prison without risk to that person’s life or health;

(b)the reason for not detaining the person in prison no longer applies; or

(c)the person is surrendered or discharged according to law.

(4)In making the order specified in subsection (2), the High Court shall have regard to any recommendations that the ICC may make regarding the place of the person’s detention.[Cf. Rome Statute, article 59(5).]

Eligibility for Surrender

39. Determination of eligibility for surrender

(1)If a person is brought before a High Court under this Part, the Court shall determine whether the person is eligible for surrender in relation to the international crime or crimes for which surrender is sought.

(2)Subsection (1) shall have effect subject to sections 34 and 41.

(3)The person is eligible for surrender if—

(a)a warrant for the arrest of the person issued by the ICC or a judgment of conviction for an international crime given by the ICC has been produced to the High Court;

(b)the Court is satisfied that the person is the person to whom the warrant or judgment relates;

(c)the Court is satisfied that the person was arrested in accordance with the proper process as provided in paragraph 2(b) of article 59 of the Rome Statute; and

(d)the Court is satisfied that the person’s rights were respected as provided in paragraph 2(c) of article 59 of the Rome Statute.

(4)Neither subsection (3)(c) nor subsection (3)(d) shall apply unless the person concerned puts the matter at issue.

(5)Notwithstanding subsection (3), the person is not eligible for surrender if he satisfies the High Court that a mandatory restriction on the surrender of the person specified in section 51(1) applies.

(6)In any proceedings under this section—

(a)the person to whom the proceedings relate is not entitled to adduce, and the High Court is not entitled to receive, evidence to contradict an allegation that the person has engaged in conduct that constitutes the offence for which the surrender is sought; and

(b)in the case of a person accused of an offence, nothing in this section requires evidence to be produced or given at the hearing to establish, according to the law of Kenya, that the trial of the person would be justified if the conduct constituting the offence had occurred within the jurisdiction of Kenya.

[Cf. Rome Statute, article 59(2).]

40. Adjournment of hearing

(1)The High Court may adjourn the hearing for such period as it considers reasonable to allow a deficiency or deficiencies to be remedied if—

(a)a document or documents containing a deficiency or deficiencies of relevance to the proceedings are produced; and

(b)the High Court considers the deficiency or deficiencies to be of a minor character.

(2)Subsection (1) does not limit the circumstances in which the High Court may adjourn a hearing.

41. Surrender by consent

(1)A person may at any time notify the High Court that he consents to being surrendered to the ICC for the international crime or crimes for which his surrender is sought.

(2)The Court may accept the notification of consent under subsection (1) if—

(a)the person is before the Court when notification of the consent to surrender is given;

(b)the person has been legally represented in the proceedings; and

(c)the Court is satisfied that the person has freely consented to the surrender in full knowledge of its consequences.

(3)Nothing in this Part prevents a person, in respect of whom a determination of eligibility for surrender is made by the High Court under section 39, from subsequently notifying the Cabinet Secretary that he consents to surrender.

(4)A person arrested under a provisional warrant may consent to surrender before a request for surrender is received, in which case—

(a)the Cabinet Secretary may make a surrender order as if a request for surrender had been received; and

(b)section 34(1)(a) shall not apply.

[Cf. Rome Statute, article 92(3).]

42. Procedure following determination on eligibility or consent to surrender

(1)This section shall apply if—

(a)the High Court has determined in accordance with section 39 that a person is eligible for surrender; or

(b)a person has consented to surrender to the ICC in accordance with section 41.

(2)If this section applies, the High Court shall—

(a)issue a warrant for the detention of the person in a prison or other place authorised in accordance with section 38, pending the surrender of the person to the ICC or his discharge according to law;

(b)send to the Cabinet Secretary a copy of the warrant of detention and such report on the case as the court thinks fit;

(c)inform a person to whom subsection (1)(a) applies that—

(i)subject to section 65, the person will not be surrendered until the expiration of fifteen days after the date of the issue of the warrant;

(ii)during that time the person has the right to make an application for a writ of habeas corpus; and

(iii)the person has the right to lodge an appeal under section 63;

(d)inform a person to whom subsection (1) applies that the Cabinet Secretary is to determine whether to issue a surrender order before the person can be surrendered to the ICC; and

(e)inform the person that if a surrender order is made and the person is not removed within two months, the person may apply to be discharged under section 69.

(3)If the High Court issues a warrant under subsection (2), the Court may grant bail to the person in accordance with section 35.

(4)If the High Court is not satisfied that the person is eligible for surrender, it shall discharge the person, unless under section 69 it orders that the person continue to be detained or issues a warrant for the arrest and detention of the person, pending the determination of an appeal under section 63.

Surrender and Temporary Surrender

43. Cabinet Secretary to determine whether person to be surrendered

(1)If the High Court issues a warrant for the detention of a person under section 42, the Cabinet Secretary shall determine whether to order that the person be surrendered, giving reasons to the High Court for any refusal to order surrender.

(2)The Cabinet Secretary shall make a surrender order in respect of the person concerned unless—

(a)the Cabinet Secretary is satisfied that surrender of the person must be refused because a mandatory restriction on surrender specified in section 51 (1) applies;

(b)the Cabinet Secretary is satisfied that one of the discretionary restrictions on surrender specified in section 51(2) applies and that it is appropriate in the circumstances that surrender be refused;

(c)the Cabinet Secretary postpones the execution of a request for surrender in accordance with section 52; or

(d)the Cabinet Secretary makes a temporary surrender order under section 45.

(3)The Cabinet Secretary shall not make a surrender order in respect of a person until the later of the following times—

(a)until the expiration of fifteen days after the date of the issue of the warrant of detention of that person under section 42(2)(a); or

(b)if an appeal, or an application for review or habeas corpus in respect of a determination under this Act, or any appeal from such an appeal or application, is pending, until after the date that the proceedings are finally determined and the result is that the person is eligible to be surrendered.

(4)Nothing in subsection (3) shall apply to—

(a)a person who has consented to surrender under section 41, whether before the High Court or subsequently by notice to the Cabinet Secretary; or

(b)a person to whom section 39 applies but who has, in accordance with section 65, notified the Cabinet Secretary that he has waived—

(i)the right to make an application for a writ of habeas corpus within fifteen days after the date of the issue of the warrant; and

(ii)the right, in relation to every international crime for which the High Court has determined that the person is eligible to be surrendered, to lodge an appeal under section 63; or

(c)a person who the High Court determines is eligible for surrender for two or more international crimes and who, under section 65, has waived—

(i)the right to make an application for habeas corpus within fifteen days after the date of the issue of the warrant; and

(ii)the right, in relation to only one or some of those international crimes, to lodge an appeal under section 63, if the ICC withdraws its request for the surrender of the person for the international crime or crimes to which the waiver does not relate.

(5)If the Cabinet Secretary makes a surrender order in respect of a person described in section 4(2), the Cabinet Secretary may arrange for any approvals, authorities, and permissions that may be needed to be obtained before surrender, including the variation, cancellation, or suspension of the sentence, or of any conditions of the sentence.

(6)Subject to section 44, once the Cabinet Secretary has made a surrender order, the Cabinet Secretary shall ensure that the person is delivered up to the ICC without delay in accordance with this Act and any applicable ICC Rules.[Cf. Rome Statute, article 59(1) and 59(7).]

44. Surrender order may take effect at later date

(1)This section shall apply if the Cabinet Secretary has determined under section 43 that in all other respects it is appropriate to make a surrender order, but the person is liable to be detained in a prison because of a sentence of imprisonment imposed for a different offence against the law of Kenya.

(2)If this section applies, the Cabinet Secretary may, after consultation with the ICC, instead of making a surrender order that has immediate effect, or a temporary surrender order under section 45, make an order for the surrender of the person that is to come into effect when the person ceases to be liable to be detained.[Cf. Rome Statute, article 89(4).]

45. Temporary surrender to ICC

(1)This section shall apply if—

(a)the request by the ICC for surrender relates to an international crime of which the person is accused;

(b)the Cabinet Secretary has determined under section 43 that in all other respects it is appropriate to make a surrender order but the person sought is either—

(i)the subject of proceedings for a different offence against Kenyan law that has not been finally disposed of; or

(ii)liable to be detained in a prison because of a sentence of imprisonment imposed for a different offence against the law of Kenya; and

(c)after consultation by the Cabinet Secretary with the ICC, the ICC requests that the person be surrendered temporarily.

(2)The Cabinet Secretary may make a temporary surrender order in respect of the person concerned.

(3)Before making a temporary surrender order, the Cabinet Secretary may seek undertakings from the ICC relating to one or more of the following matters—

(a)the return of the person to Kenya;

(b)the custody of the person while travelling to and from and while in the ICC’s jurisdiction;

(c)such other matters, if any, that the Cabinet Secretary thinks appropriate.

[Cf. Rome Statute, article 89(4).]

46. Decision to return to Kenya after trial

(1)The Cabinet Secretary shall review whether it is appropriate for a person who has been surrendered to the ICC under a temporary surrender order to be returned to Kenya in accordance with undertakings received from the ICC, if the person is convicted by the ICC of an international crime and sentenced to imprisonment.

(2)The Cabinet Secretary may determine that he no longer requires the undertaking relating to return to be complied with and, if so, shall inform the ICC without delay.

47. Request to return to ICC after temporary surrender

(1)The Cabinet Secretary may make a surrender order in relation to a person who was surrendered to the ICC under a temporary surrender order if—

(a)the person has been convicted by the ICC of an international crime and sentenced to imprisonment;

(b)the person is returned to Kenya in order for the Kenyan proceedings or sentence to be completed; and

(c)the ICC, at any time before the person ceases to be the subject of Kenyan proceedings or ceases to be liable to be detained in a Kenyan prison, requests that, when he ceases to be the subject of such proceedings or ceases to be so liable, the person be surrendered to serve the sentence imposed by the ICC.

(2)An order under subsection (1) shall not be made unless the Cabinet Secretary has determined, in accordance with section 43, that the person is to be surrendered.

(3)If a surrender order is made under this section, the order takes effect on the same day that the person ceases to be subject to the Kenyan proceedings or ceases to be liable to be detained in a Kenyan prison.

48. Kenyan sentences continue to run

(1)If a person who is subject to a sentence of imprisonment is released from a Kenyan prison under a surrender order made under section 43 or a temporary surrender order made under section 45, the person shall be treated, while in custody in connection with the request or the crime to which the request related, as the case may be (including custody outside Kenya), as being in custody for the purposes of the Kenyan sentence, which, subject to subsection (3), shall continue to run.

(2)If, while a person is within the jurisdiction of the ICC under a temporary surrender order or surrender order, the person ceases to be liable to be detained in a Kenyan prison, the Cabinet Secretary shall inform the ICC that any undertakings relating to custody referred to in section 45(3)(a) and section 45(3)(b) no longer need to be complied with.

(3)Nothing in this section affects the ICC’s power to direct that any sentence of imprisonment that it imposes shall be cumulative on a sentence imposed under Kenyan law.

49. Form and execution of surrender order or temporary surrender order

A surrender order made under section 43 or a temporary surrender order made under section 45 shall be in the prescribed form, if any, and shall—

(a)specify all the international crimes in relation to which the person is being surrendered;

(b)either—

(i)require the person in whose custody the person to be surrendered is being held (if the person is being held in custody) to release the person to be surrendered into the custody of a member of the National Police Service, or a prison officer; or

(ii)if the person to be surrendered is on bail, authorise any member of the National Police Service to take the person into custody;

(c)authorise the member of the National Police Service or prison officer, as the case may be, to transport the person in custody and, if necessary or convenient, to detain the person in custody, for the purpose of enabling the person to be placed in the custody of a person who is, in the opinion of the Cabinet Secretary, duly authorised to receive the person to be surrendered in the name of and on behalf of the ICC; and

(d)authorise the duly authorised person referred to in paragraph (c) to take the person to be surrendered into custody and transport the person out of Kenya as soon as practicable to the ICC, there to be dealt with according to law.

50. Surrender to State of enforcement

(1)If a request for surrender relates to a convicted person who has escaped from custody and the ICC directs, under article 111 of the Rome Statute, that the person be delivered to the State in which the person was serving the sentence or to any other State designated by the ICC, the Cabinet Secretary shall arrange for the person to be delivered to the State specified in the direction.

(2)In any case in which subsection (1) applies, the surrender order may specify that the person be surrendered into the custody of duly authorised representatives of the State specified in the direction.[Cf. Rome Statute, article 111.]

Restrictions on Surrender

51. Refusal of surrender

(1)The Cabinet Secretary shall refuse a request by the ICC for the surrender of a person if—

(a)there have been previous proceedings against the person and section 53 (3) applies;

(b)the ICC determines that the case is inadmissible and section 55(3) or section 56(2) applies; or

(c)section 62(2) applies.

(2)The Cabinet Secretary may refuse a request by the ICC for the surrender of a person if—

(a)there are competing requests from the ICC and a State that is not a party to the Rome Statute relating to the same conduct and section 59 (4) applies; or

(b)there are competing requests from the ICC and a State that is not a party to the Rome Statute relating to different conduct and section 60 (3) applies.

(3)The only grounds on which surrender to the ICC may be refused are those specified in this section and, if applicable, section 19(2), and no restrictions on surrender specified in the Extradition (Commonwealth Countries) Act (Cap. 77) or the Extradition (Contiguous and Foreign Countries) Act (Cap. 76) shall apply in relation to a request for surrender from the ICC.

52. Postponement of execution of request for surrender

(1)The Cabinet Secretary may postpone the execution of a request for surrender under this Part at any time before the person sought is surrendered if, and only if—

(a)a ruling on admissibility of the kind specified in section 53(1) or section 55 (1) or section 56 is pending before the ICC;

(b)the request would interfere with an investigation or prosecution for a different offence against Kenyan law, as provided in section 54; or

(c)a request of the kind referred to in section 62(1)(c) is made to the ICC.

(2)Even if a case is one to which subsection (1) applies, the Cabinet Secretary may decide not to postpone the execution of the request; and, in that event, the Cabinet Secretary may take such steps under this Part as may be appropriate in the circumstances, including making a surrender order with immediate effect under section 43 or with effect at a later date under section 44 or a temporary surrender order under section 45.

(3)If the Cabinet Secretary postpones the execution of the request, the postponement may be for a reasonable time and may, if the Cabinet Secretary considers it desirable, be extended from time to time.

(4)A decision by the Cabinet Secretary to postpone the execution of a request—

(a)does not limit or affect—

(i)the High Court’s ability to accept notification of consent to the surrender;

(ii)the ability to continue to detain a person under any warrant issued under this Part; and

(b)does not affect the validity of any act that has been done or any warrant or order made under this Part before the decision was made.

(5)If no decision on the execution of the request for surrender is made within six months after the date of the Minister’s decision to postpone the execution of the request, the person may apply to a Judge of the High Court to be discharged.

(6)If an application to be discharged is made under subsection (5), the Judge may, on proof that reasonable notice of the intention to make the application has been given to the Cabinet Secretary, unless sufficient cause is shown against the discharge—

(a)discharge any order made under this Act; and

(b)order the discharge of the person from the place where the person is detained, if the person is not liable to be detained under any other order for detention.

53. Previous proceedings against person sought

(1)Where the person whose surrender is sought alleges that—

(a)the case is one to which paragraph 1 of article 20 of the Rome Statute applies (because it relates to conduct that formed the basis of crimes for which the person has been convicted or acquitted by the ICC); or

(b)the person has been tried by another court for conduct also proscribed under article 6, 7 or 8 of the Rome Statute and the case is not one to which paragraph 3(a) and (b) of article 20 of the Rome Statute applies, the Cabinet Secretary shall immediately consult with the ICC to determine if there has been a relevant ruling on admissibility under the Rome Statute.

(2)If the ICC has ruled that the case is admissible, surrender cannot be refused on the ground there have been previous proceedings.

(3)If the ICC has ruled that the case is inadmissible under article 20 of the Rome Statute, surrender shall be refused on the ground that there have been previous proceedings.

(4)If an admissibility ruling is pending, the Cabinet Secretary may postpone the execution of a request until the ICC has made a determination on admissibility.[Cf. Rome Statute, articles 20(1), 20(3), 89(2).]

54. Ongoing Kenyan investigation or proceedings involving different conduct

(1)Where the ICC makes a request for surrender that would interfere with any investigation or proceedings in Kenya involving different conduct, the Cabinet Secretary may, after consultation with the ICC—

(a)proceed with the execution of the request in accordance with section 52(2), despite the Kenyan investigation or proceedings; or

(b)postpone the execution of the request until the Kenyan investigation or proceedings have been finally disposed of.

(2)Nothing in this section limits or affects section 44 which allows the Cabinet Secretary, after consultation with the ICC, to make a surrender order that comes into force at a later date if a person is serving a sentence for a different offence against Kenyan law.[Cf. Rome Statute, article 94.]

55. Person being prosecuted in Kenya for same conduct

(1)This section shall apply if—

(a)the ICC makes a request for surrender;

(b)the request relates to conduct that would constitute an offence under Kenyan law;

(c)either—

(i)the conduct is being investigated or prosecuted in Kenya; or

(ii)the conduct had been investigated in Kenya and a decision was made not to prosecute the person sought, that decision not being due to the unwillingness or genuine inability to prosecute;

and

(d)a challenge to the admissibility of the case is being or has been made to the ICC under paragraph 2(b) of article 19 of the Rome Statute.

(2)If this section applies, the Cabinet Secretary may postpone the execution of the request for surrender until the ICC has made its determination on admissibility.

(3)If the ICC determines that the case is inadmissible, surrender shall be refused.

(4)If the ICC determines that the case is admissible and there is no other ground for refusing or postponing the request, the request shall continue to be dealt with under this Part.[Cf. Rome Statute, articles 17(1), 19(2)(b), 95.]

56. Other challenges to admissibility

(1)If the ICC is considering an admissibility challenge under article 18 or article 19 of the Rome Statute, other than a challenge of the kind referred to in section 53 or section 55, the Cabinet Secretary may postpone the execution of a request under this Part pending a determination by the ICC.

(2)If the ICC determines that the case is inadmissible, surrender shall be refused.

(3)If the ICC determines that the case is admissible, and there is no other ground for refusing or postponing the request, the request shall continue to be dealt with under this Part.[Cf. Rome statute, article 95.]

57. Request from ICC and other State relating to same conduct

If a request for surrender of a person is received from the ICC and one or more States also request the extradition of the person for the same conduct that forms the basis of the crime for which the ICC seeks the person’s surrender, the Cabinet Secretary —

(a)shall notify the ICC and the requesting State of that fact; and

(b)shall determine, in accordance with section 58 or section 59, but without regard to any provision of the Extradition (Commonwealth Countries) Act (Cap. 77) or the Extradition (Contiguous and Foreign Countries) Act (Cap.76), whether the person is to be surrendered to the ICC or to the requesting State.

[Cf. Rome Statute, article 90(1).]

58. Procedure where competing request from State Party

(1)If section 57 applies and the requesting State is a party to the Rome Statute, priority shall be given to the request from the ICC if—

(a)the ICC has, under article 18 or article 19 of the Rome Statute, made a determination that the case in respect of which surrender is sought is admissible and that determination takes into account the investigation or prosecution conducted by the requesting State in respect of its request for extradition; or

(b)the ICC makes such a determination after receiving notification of the competing request.

(2)If the request is one to which subsection (1)(b) relates, then, pending the ICC’s determination—

(a)the steps required to be taken under the Extradition (Commonwealth Countries) Act (Cap. 77) or the Extradition (Contiguous and Foreign Countries) Act (Cap. 76), as the case may be, in relation to a request for extradition may continue to be taken; and

(b)no person may be surrendered under the relevant Act unless and until the ICC makes its decision on admissibility and determines that the case is inadmissible.

[Cf. Rome Statute, article 90(2).]

59. Procedure where competing request from non-State Party

(1)If section 57 applies and the requesting State is not a party to the Rome Statute, priority shall be given to the request for surrender from the ICC if—

(a)Kenya is not under an international obligation to extradite the person to the requesting State; and

(b)the ICC has determined under article 18 or article 19 of the Rome Statute that the case is admissible.

(2)If section 57 applies and the requesting State is not a party to the Rome Statute, the request for extradition may continue to be dealt with if—

(a)Kenya is not under an international obligation to extradite the person to the requesting State; and

(b)the ICC has not yet determined under article 18 and article 19 of the Rome Statute that the case is admissible.

(3)Notwithstanding subsection (2), no person may be surrendered under the Extradition (Commonwealth Countries) Act (Cap. 77) or the Extradition (Contiguous and Foreign Countries) Act (Cap. 76), as the case may be, unless and until the ICC makes its decision on admissibility and determines that the case is inadmissible.

(4)If section 57 applies, and the requesting State is not a party to the Rome Statute, and Kenya is under an international obligation to extradite the person to the requesting State, the Cabinet Secretary shall determine whether to surrender the person to the ICC or extradite the person to the requesting State.

(5)In making the determination under subsection (4), the Cabinet Secretary shall consider all the relevant factors, including—

(a)the respective dates of the requests;

(b)the interests of the requesting State, including, if relevant, whether the crime was committed in its territory and the nationality of the victims and of the person sought; and

(c)the possibility of subsequent surrender between the ICC and the requesting State.

[Cf. Rome Statute, article 90(4) - (6).]

60. Request from ICC and other State relating to different conduct

(1)If a request for surrender of a person is received from the ICC and a request for the extradition of that person is received from one or more States for conduct other than that which constitutes the crime for which the ICC seeks the person’s surrender, the Cabinet Secretary shall determine whether the person is to be surrendered to the ICC or to the requesting State.

(2)If Kenya is not under an existing international obligation to extradite the person to the requesting State, priority shall be given to the request from the ICC.

(3)If Kenya is under an existing international obligation to extradite the person to the requesting State, the Cabinet Secretary shall determine whether to surrender the person to the ICC or to extradite the person to the requesting State.

(4)In making the determination under subsection (3), the Cabinet Secretary shall consider all the relevant factors, including those matters specified in section 59, but shall give special consideration to the relative seriousness of the offences for which surrender is sought.[Cf. Rome Statute, article 90(7).]

61. Notification of decision on extradition to requesting State

(1)If, following notification under article 90 of the Rome Statute, the ICChas determined that a case is inadmissible and the Cabinet Secretary subsequently refuses extradition of the person to the requesting State under the Extradition (Commonwealth Countries) Act (Cap. 77) or the Extradition (Contiguous and Foreign Countries) Act (Cap. 76), as the case may be, the Cabinet Secretary shall notify the ICC of this decision.

(2)The obligation in this section is in addition to the requirement in section 26 for the Cabinet Secretary to respond formally to the request from the ICC.[Cf. Rome Statute, article 90(8).]

62. Conflict with obligations to another State

(1)Where—

(a)the ICC makes a request for surrender;

(b)the ICC has not previously made a final determination on whether or not article 98 of the Rome Statute applies to that request; and

(c)a request is made to the ICC to determine whether or not article 98 of the Rome Statute applies to the request for surrender, the Cabinet Secretary may postpone the request for surrender until the ICC advises whether or not it intends to proceed with the request for surrender.

(2)If the ICC advises that it does not intend to proceed with the request, surrender shall be refused.

(3)If the ICC advises that it intends to proceed with the request for surrender, and there is no other ground for refusing or postponing the request, the request shall continue to be dealt with under this Part.[Cf. Rome Statute, article 98.]

Appeals against Determinations of Eligibility for Surrender

63. Appeal on question of law by way of case stated

(1)If the High Court determines under section 39 that a person is or is not eligible for surrender in relation to any crime for which surrender is sought, and either party considers the determination erroneous in point of law, the party may appeal against the determination to the Court of Appeal on a question of law only.

(2)To lodge an appeal the party shall, within fifteen days after the determination, file in the office of the court that made the determination a notice of appeal in the prescribed form.

64. Custody pending determination of appeal

(1)The High Court may order that the person who is the subject of the determination continue to be detained or, as the case may be, issue a warrant for the arrest and detention of the person, pending the determination of the appeal if—

(a)the High Court makes a determination under section 39; and

(b)immediately after the High Court makes the determination, either party informs the High Court that the party intends to appeal against the determination.

(2)The High Court or the Court of Appeal may order that the person who is the subject of the determination continue to be detained or, as the case may be, issue a warrant for the arrest and detention of the person, pending the determination of the appeal if—

(a)the High Court makes a determination under section 39; and

(b)either party files a notice of appeal against the determination.

(3)If a person is detained under an order made under this section or is arrested and detained under a warrant issued under this section, sections 35 to 38 shall apply, with any necessary modifications, to the detention of the person as if the appeal proceedings were proceedings under section 39 to determine whether or not the person is eligible for surrender.

65. Waiver of rights to apply for habeas corpus or to lodge appeal

Without limiting the operation of section 41, a person whose surrender is sought may, by a waiver in the prescribed form, waive the following rights—

(a)the right to make an application for a writ of habeas corpus within fifteen days after the issue of a warrant of detention; and

(b)the right, in relation to any international crime or crimes for which the High Court has determined that the person is eligible for surrender, to lodge an appeal under this Part.

66. Powers of court on appeal

(1)The Court of Appeal shall hear and determine the question or questions of law arising on any case transmitted to it, and do one or more of the following things—

(a)reverse, confirm, or amend the determination in respect of which the case has been stated;

(b)remit the determination to the High Court for reconsideration together with the opinion of the Court of Appeal on the determination;

(c)remit the determination to the High Court with a direction that the proceedings to determine whether the person is eligible for surrender be reheard;

(d)make any other order in relation to the determination that it thinks fit.

(2)In hearing and determining the question or questions of law arising on any case transmitted to it, the Court of Appeal—

(a)shall not have regard to any evidence of a fact or opinion that was not before the High Court when it made the determination appealed against; and

(b)may in the same proceedings hear and determine any application for a writ of habeas corpus made in respect of the detention of the person whose surrender is sought.

67. Further provisions relating to powers of court on appeal

(1)If the appeal is against a determination that a person is eligible for surrender, and the Court of Appeal reverses the determination, the Court of Appeal shall also either—

(a)discharge the person; or

(b)remit the determination to the High Court with a direction that the proceedings to determine whether the person is eligible for surrender be reheard.

(2)If the appeal is against a determination that a person is eligible for surrender in respect of two or more international crimes, and the Court of Appeal finds that the determination includes an error of law that relates to only one or some of those international crimes, the Court of Appeal may amend the determination and—

(a)discharge the person in respect of that international crime or those international crimes; or

(b)remit the determination to the High Court with a direction that the proceedings to determine whether the person is eligible for surrender be reheard in respect of that international crime or those international crimes.

(3)Notwithstanding subsections (1) and (2), if an appeal is against a determination that a person is eligible for surrender, and the Court of Appeal finds that there has been an error of law, it may nevertheless decline to reverse or amend the determination in respect of which the case has been stated if it considers that no substantial wrong or miscarriage of justice has occurred and that the determination ought to be upheld.

(4)If the appeal is against a determination that a person is not eligible for surrender, and the Court of Appeal finds that the determination includes an error of law, the Court of Appeal may—

(a)exercise the powers of a High Court under section 42 as if it were the High Court (for which purpose subsection (2)(c) of that section shall not apply); or

(b)if it remits the determination to the High Court, issue a warrant for the arrest and detention of the person pending the High Court’s reconsideration of the determination or rehearing of the proceedings to determine whether the person is eligible for surrender; and section 64 (3) shall apply to any warrant issued under this paragraph as if the warrant were issued under that section.

(5)Subsections (1), (2) and (4) do not limit the operation of section 66.

Discharge of Person

68. Discharge of person if Cabinet Secretary declines to order surrender

If the Cabinet Secretary determines under section 43 that the person is not to be surrendered, the person shall be discharged from custody immediately unless the person is subject to any other order for detention.

69. Discharge of person if not surrendered within two months

(1)This section shall apply if a person is not surrendered and conveyed out of Kenya under a surrender order or a temporary surrender order made under this Part within two months—

(a)after the date of the issue of the warrant for the detention of the person under section 42 pending surrender, if no appeal or application for review or habeas corpus, in respect of a determination under this Act, or any appeal from such an appeal or application, is pending;

(b)if an appeal, or an application for review or habeas corpus, in respect of a determination under this Act, or any appeal from such an appeal or application, is pending, after the date that the proceedings are finally determined; or

(c)if a surrender order is made under section 44, after the date that the order takes effect.

(2)If this section applies, the person may apply to a Judge of the High Court to be discharged.

(3)If an application to be discharged is made under subsection (2), the Judge may, on proof that reasonable notice of the intention to make the application has been given to the Cabinet Secretary, unless sufficient cause is shown against the discharge—

(a)discharge the surrender order or temporary surrender order, as the case may be; and

(b)order the discharge of the person from the place where the person is detained, if the person is not liable to be detained under any other order for detention.

70. Discharge of person if not re-surrendered

(1)If a person has been surrendered under a temporary surrender order made under section 45, nothing in section 69 prevents an order being made under section 47.

(2)Where—

(a)an order is made under section 47; and

(b)the person is not surrendered and conveyed out of Kenya under this Part within two months after the date that the person ceases to be liable to be detained under the sentence of imprisonment imposed by a Kenyan court, the person may apply to a Judge of the High Court to be discharged.

(a)discharge the surrender order; and

(b)order the discharge of the person from the place where the person is detained, if the person is not liable to be detained under any other order for detention.

71. Discharge of person under this Part does not preclude further proceedings

The discharge of a person under any provision of this Part does not preclude further proceedings under this Act, whether or not they are based on the same conduct, to surrender the person to the ICC.[Cf. Rome Statute, article 92(4).]

Miscellaneous Provisions relating to Arrest and Surrender

72. Search and seizure on arrest

(1)If a person is arrested on a warrant issued under this Part, a member of the National Police Service may, without further warrant, search the person arrested and may seize any thing, including any sum of money, found on him or in his possession if the member of the National Police Service believes on reasonable grounds that the thing on the person or in his possession may be evidence as to the commission of any offence in relation to which the warrant to arrest was issued or for which the surrender of the person is sought by the ICC.

(2)If there is no suitable searcher available at the place where the search is to take place, the person to be searched may be taken to another place to be searched.

(3)Nothing in this section limits or affects the right at common law of a constable to search a person on that person’s arrest or any statutory power conferred on a member of the National Police Service.

(4)If any thing is seized under subsection (1) from the person arrested—

(a)the member of the National Police Service shall make a report to the Cabinet Secretary specifying the items seized and any other relevant information; and

(b)the Cabinet Secretary shall, on receipt of the report referred to in paragraph (a), provide the ICC with a report on the seizure.

73. Disposal of property seized

(1)If the Cabinet Secretary makes a surrender order or temporary surrender order under this Act, the Cabinet Secretary may also direct that any thing that was seized under section 72 that may be evidence of the offence the person is alleged to have committed or has committed be delivered with the person on his surrender to the ICC.

(2)If the person cannot be surrendered or temporarily surrendered by reason of the person’s death or escape from custody, the Cabinet Secretary may direct that any thing that was seized under section 72 that may be evidence of the offence the person is alleged to have committed or has committed be delivered up to the ICC.

(3)If a person is discharged under this Act without being surrendered or temporarily surrendered, the Cabinet Secretary may direct that any thing seized under section 72 be returned to the person from whom it was seized.

(4)The Cabinet Secretary may refuse to direct that any thing referred to in subsection (1) or (2) be delivered to the ICC if the thing is required for the investigation of an offence within the jurisdiction of Kenya.

(5)The Cabinet Secretary may refuse to direct that any thing referred to in subsection (3) be returned to the person if—

(a)the thing is the subject of a dispute as to who is entitled to it;

(b)the thing is required for the investigation of an offence within the jurisdiction of Kenya; or

(c)possession of the thing by the person would be unlawful in Kenya.

74. Information about time spent in custody in Kenya

(1)If the ICC requests the surrender of a person, and that person is detained in a Kenyan prison or any other place at any time pending surrender, the officer in charge of the prison or other place shall keep a record of the time spent in custody as if the person were charged with an offence against the law of Kenya and were on remand.

(2)The officer in charge shall, if requested, provide to the Cabinet Secretary a certificate recording—

(a)the date on which the person was admitted to a prison or any other place to be held in custody in relation to the request;

(b)the total period during which the person was detained in custody during the process leading to the surrender of the person to Kenya in relation to the offence or offences; and

(c)whether the person was, at any time during the period in custody in relation to the surrender, also serving a sentence for an offence against Kenyan law.

(3)The Cabinet Secretary shall provide to the ICC at the time of the surrender of the person, or as soon as possible after that, a certificate recording the information specified in subsection (2) and such other information relating to any period spent in custody in relation to the surrender as the ICC may request.[Cf. Rome Statute, article 78(2).]

75. Consent to trial of surrendered person for previous offences

(1)Where—

(a)a person is surrendered to the ICC under this Act; and

(b)the ICC requests a waiver of the requirements of paragraph 1 of article 101 of the Rome Statute (which relates to the rule of speciality), the Cabinet Secretary may consent to the person being proceeded against, punished, or detained for conduct committed before surrender (not being the conduct or course of conduct that forms the basis of the crimes for which that person has been surrendered).

(2)The consent given under subsection (1) may relate to the person’s surrender to another State.

(3)Before giving consent under subsection (1), the Minister—

(a)may request that additional information be provided in accordance with article 91 of the Rome Statute; and

(b)may seek such assurances from the ICC as the Cabinet Secretary thinks fit.

[Cf. Rome Statute, articles 91, 101.]

Part V – DOMESTIC PROCEDURES FOR OTHER TYPES OF CO-OPERATION

Finding Persons or Things, and Obtaining Evidence

76. Assistance in locating or identifying persons or things

(1)Where the ICC requests assistance under paragraph 8 of article 19, article 56, article 64 or paragraph 1(a) of article 93 of the Rome Statute in locating, or identifying and locating, a person or a thing believed to be in Kenya, the Director of Public Prosecutions shall give authority for the request to proceed if he is satisfied that—

(a)the request relates to an investigation being conducted by the Prosecutor or any proceedings before the ICC; and

(b)the person to whom or thing to which the request relates is or may be in Kenya.

(2)If the Director of Public Prosecutions gives authority for the request to proceed—

(a)the Director of Public Prosecutions shall forward the request to the appropriate Kenyan agency; and

(b)that agency shall, without delay—

(i)use its best endeavours to locate or, as the case may be, identify and locate the person to whom or thing to which the request relates; and

(ii)advise the Director of Public Prosecutions of the outcome of those endeavours.

[Cf. Rome Statute, articles 19(8), 56, 64, 93 (1)(a)][Act No. 19 of 2023, Sch.]

77. Assistance in gathering evidence

(1)This section shall apply if the ICC requests, under paragraph 8 of article 19, article 56, article 64 or paragraph 1(b) of article 93 of the Rome Statute, that—

(a)evidence be taken in Kenya; or

(b)documents or other articles in Kenya be produced.

(2)The Director of Public Prosecutions shall give authority for the request to proceed if the Director of Public Prosecutions is satisfied that—

(a)the request relates to an investigation being conducted by the Prosecutor or to any proceedings before the ICC; and

(b)there are reasonable grounds for believing that the evidence can be taken or, as the case may be, the documents or other articles can be produced in Kenya.

[Cf. Rome Statute, articles 19(8), 56, 64, 93(1)(a)][Act No. 19 of 2023, Sch.]

78. Taking evidence

(1)If the Director of Public Prosecutions gives authority for a request relating to the taking of evidence to proceed, the statement of each witness shall be taken in writing on the oath or affirmation of that witness by a Judge of the High Court.

(2)The Judge who takes evidence under subsection (1) shall—

(a)certify that the evidence was taken by the Judge; and

(b)ensure that the evidence, as certified, is sent to the Director of Public Prosecutions.

[Act No. 19 of 2023, Sch.]

79. Producing documents or other articles

(1)If the Director of Public Prosecutions gives authority for a request relating to the production of documents or other articles to proceed, a Judge of the High Court may make an order requiring their production.

(2)If the documents or other articles are produced, the Judge shall send them to the Director of Public Prosecutions together with a written statement certifying that they were produced to the Judge.

(3)Notwithstanding subsection (2), in the case of documents that are produced, the Judge may send to the Director of Public Prosecutions copies of the documents certified by the Judge to be true copies instead of the originals.[Act No. 19 of 2023, Sch.]

80. Protection of witnesses

(1)The applicable law with respect to compelling a person to appear before a Judge under section 78 or 79 and to give evidence or answer questions, or to produce documents or other articles, is the law specified in subsection (2), which law shall apply with any necessary modifications.

(2)For the purposes of subsection (1), the applicable law is the law of Kenya that applies to the giving of evidence or the answering of questions or the production of documents or other articles on the hearing of a charge against a person for an offence against the law of Kenya.

(3)Notwithstanding subsection (1), for the purposes of sections 78 and 79, the person to whom the investigation being conducted by the Prosecutor, or the proceedings before the ICC, relates is competent but not compellable to give evidence.

(4)Notwithstanding subsection (1), a person who is required under section 78 or 79 to give evidence, or to produce documents or other articles, is not required to give any evidence, or to produce any document or article, that the person could not be compelled to give or produce in the investigation being conducted by the Prosecutor or the proceedings before the ICC.

(5)A person who is required under section 78 or 79 to give evidence or to produce documents or other articles—

(a)has the same privileges in relation to the answering of questions and the production of documents or articles as if the investigation were being conducted in Kenya or the proceedings were pending in a Kenyan court, as the case may be; and

(b)shall be given a copy of any statement required to be given to a witness under the ICC Rules in the manner and form required by those Rules.

(6)Subsections (4) and (5) shall have effect subject to section 27 and any contrary provision in the Rome Statute or the ICC Rules.

81. ICC may give evidence certificate

(1)In this section, "evidence certificate" means a certificate or declaration that—

(a)is given or made by or on behalf of the ICC; and

(b)specifies or declares whether, under the Rome Statute or the ICC Rules, a specified person or class of persons could or could not be required to answer a specified question or to produce a specified document—

(i)generally;

(ii)in specified proceedings; or

(iii)in specified circumstances.

(2)An evidence certificate authenticated under subsection (3) is admissible in proceedings for the purposes of the application of section 80(4) as prima facie evidence of the matters stated in the certificate.

(3)A certificate is authenticated for the purposes of subsection (2) if it purports to be—

(a)signed or certified by a Judge, the Registrar, the Deputy Registrar, or a member of the staff of the ICC; or

(b)authenticated in any other manner authorised by the Rome Statute or the ICC Rules.

82. Certain persons may appear

(1)The following persons may appear and be legally represented at a hearing held under section 78 or 79—

(a)the person to whom the proceedings before the ICC or the investigation conducted by the Prosecutor relates;

(b)any other person giving evidence or producing documents or other articles at the hearing;

(c)a representative of the Prosecutor or ICC.

(2)This section shall have effect subject to any contrary provision of the Rome Statute or the ICC Rules.

(3)A certificate by a Judge under section 78(2) or section 79(2) shall state whether any of the persons specified in subsection (1) were present when the evidence was taken or the documents or other articles were produced.

83. Powers of Judge may be exercised by Registrar

(1)The Chief Justice may authorise the Registrar of the High Court to exercise the powers of a Judge under section 78 or 79 in respect of any particular case.

(2)An authorisation given under subsection (1) may be revoked at any time by the Chief Justice.

(3)If a matter in respect of which the Registrar has jurisdiction under an authorisation given under subsection (1) appears to the Registrar to be one of special difficulty, the Registrar may refer the matter to a Judge, who may—

(a)dispose of the matter; or

(b)refer it back to the Registrar with such directions as the Judge thinks fit.

(4)Nothing in this section prevents the exercise by any Judge of any jurisdiction or powers conferred on any Registrar under this section.

Questioning persons

84. Assistance in questioning persons

(1)Where the ICC requests assistance under paragraph 8 of article 19, article 56, article 64 or paragraph 1(c) of article 93 of the Rome Statute in questioning a person who is being investigated or prosecuted, the Director of Public Prosecutions may give authority for the request to proceed if he is satisfied that—

(a)the request relates to an investigation being conducted by the Prosecutor or any proceedings before the ICC; and

(b)the person is or may be in Kenya.

(2)If the Director of Public Prosecutions gives authority to proceed—

(a)he shall forward the request to the appropriate Kenyan agency; and

(b)that agency shall, without delay—

(i)use its best endeavours to undertake the questioning that the ICC has requested;

(ii)ensure that the answers to the questions put are recorded in writing and make any other report on the questioning as it considers to be appropriate in the circumstances; and

(iii)advise the Director of Public Prosecutions of the outcome of those endeavours and, if relevant, deliver to him the record and any report of the questioning.

[Act No. 19 of 2023, Sch.]

85. Procedure where questioning by Kenyan agency

(1)Where there are grounds to believe that a person who is to be questioned by a Kenyan agency following a request under paragraph 1(c) of article 91 of the Rome Statute has committed a crime within the jurisdiction of the ICC, the person—

(a)shall not be compelled to incriminate himself or herself or to confess guilt;

(b)shall not be subjected to any form of coercion, duress or threat, to torture or to any other form of cruel, inhuman or degrading treatment or punishment;

(c)shall, if questioned in a language other than a language the person fully understands and speaks, have, free of any cost, the assistance of a competent interpreter and such translations as are necessary to meet the requirements of fairness;

(d)shall not be subjected to arbitrary arrest or detention, and shall not be deprived of his or her liberty except on such grounds and in accordance with such procedures as are established in the Rome Statute; and

(e)shall be informed, before being questioned, that there are grounds to believe that he has committed a crime within the jurisdiction of the ICC and that he has the right—

(i)to remain silent, without such silence being a consideration in the determination of his guilt or innocence;

(ii)to have legal assistance of his choosing, or, if he does not have legal assistance, to have legal assistance assigned to him, in any case where the interests of justice so require, and without payment by him in any such case if he does not have sufficient means to pay for it; and

(iii)to be questioned in the presence of a lawyer unless he voluntarily waives the right to counsel.

(2)If there is any inconsistency between subsection (2) and any other written law, subsection (2) shall prevail to the extent of the inconsistency.

(3)If the person seeks to have legal assistance assigned under subsection (2) (e) (ii), the Director of Public Prosecutions shall cause such assistance to be provided.

(4)This section does not give any person a power to require another person to answer questions.[Cf. Rome Statute, article 55][Act No. 19 of 2023, Sch.]

Service of Documents and Appearance of Witnesses

86. Assistance in arranging service of documents

(1)Where the ICC requests assistance under paragraph 8 of article 19, article 56, paragraph 7 of article 58, article 64 or paragraph 1(d) of article 93 of the Rome Statute in arranging for the service of a document in Kenya, the Director of Public Prosecutions shall give authority for the request to proceed if he is satisfied that—

(a)the request relates to an investigation being conducted by the Prosecutor or any proceedings before the ICC; and

(b)the person or body to be served is or may be in Kenya.

(2)If the Director of Public Prosecutions gives authority for the request to proceed, he shall forward the request for service to the appropriate Kenyan agency, and that agency shall, without delay—

(a)use its best endeavours to have the process served—

(i)in accordance with any procedure specified in the request; or

(ii)if that procedure would be unlawful or inappropriate in Kenya, or if no procedure is specified, in accordance with the law of Kenya; and

(b)transmit to the Director of Public Prosecutions—

(i)a certificate as to service, if the document is served; or

(ii)a statement of the reasons that prevented service, if the document is not served.

(3)In this section, "document" includes—

(a)a summons requiring a person to appear as a witness; and

(b)a summons to an accused that has been issued under paragraph 7 of article 58 of the Rome Statute.

[Cf. Rome Statute, articles 19(8), 56, 58(7), 59 (7), 64, 93(1)(d)][Act No. 19 of 2023, Sch.]

87. Request for voluntary appearance of witness

(1)Where the ICC requests assistance under paragraph 8 of article 19, article 56, paragraph 7 of article 58, article 64 or paragraph 1(e) of article 93 of the Rome Statute in facilitating the voluntary appearance of a witness before the ICC, the Director of Public Prosecutions may give authority for the request to proceed if he is satisfied that—

(a)the request relates to an investigation being conducted by the Prosecutor or any proceedings before the ICC; and

(b)the witness’s attendance is sought so that the witness can give evidence or information relating to the investigation or proceedings; and

(c)the witness is or may be in Kenya.

(2)In this section and sections 88 and 89, "witness" includes a person who may give expert evidence, but does not include a person who has been accused of an international crime in the proceedings to which the request relates.[Cf. Rome Statute, articles 19(8), 56, 64, 93(1)(e)][Act No. 19 of 2023, Sch.]

88. Consent required and assurances may be sought

(1)If the Director of Public Prosecutions gives authority for the request to facilitate the voluntary appearance of a witness to proceed, he shall forward the request to the appropriate Kenyan agency.

(2)The Kenyan agency to which a request is forwarded under subsection (1) shall make such inquiries as may be necessary to ascertain if the prospective witness consents to giving evidence or assisting the ICC.

(3)The Director of Public Prosecutions may, at any time, ask the ICC to give one or more of the following assurances—

(a)that the witness will not be prosecuted, detained, or subjected to any restriction of personal freedom by the ICC in respect of all or any specified acts or omissions that occurred before the person’s departure from Kenya;

(b)that the witness will be returned to Kenya as soon as practicable in accordance with arrangements agreed to by the Director of Public Prosecutions;

(c)an assurance relating to such other matters as the Director of Public Prosecutions thinks appropriate.

[Cf. Rome Statute, article 93(2)][Act No. 19 of 2023, Sch.]

89. Director of Public Prosecutions may facilitate appearance

(1)The Director of Public Prosecutions shall assist in the making of arrangements to facilitate a witness’s attendance before the ICC if he is satisfied that—

(a)the prospective witness has consented to giving the evidence or assistance requested; and

(b)the ICC has given adequate assurances where appropriate.

(2)The Director of Public Prosecutions shall—

(a)approve and arrange the travel of the witness to the ICC;

(b)obtain such approvals, authorities, and permissions as are required for that purpose, including, in the case of a person who although not liable to be detained in a prison is subject to a sentence—

(i)the variation, discharge, or suspension of the conditions of the person’s release from prison; or

(ii)the variation or suspension of the person’s sentence, or of the conditions of the person’s sentence; and

(c)take such other action for the purposes of subsection (1) as he thinks appropriate.

[Act No. 19 of 2023, Sch.]

Temporary Transfer of Prisoners

90. Request for temporary transfer of prisoner

Where the ICC requests assistance under paragraph 1(f) of article 93 of the Rome Statute in facilitating the temporary transfer to the ICC of a Kenyan prisoner, the Director of Public Prosecutions shall give authority for the request to proceed if he is satisfied that—

(a)the request relates to an investigation being conducted by the Prosecutor or any proceedings before the ICC; and

(b)the prisoner’s attendance is sought for the purposes of identification or for obtaining evidence or other assistance.

[Cf. Rome Statute, articles 93(1)(f) and (7)][Act No. 19 of 2023, Sch.]

91. Consent required and assurances may be sought

(1)If the Director of Public Prosecutions gives authority for the request to facilitate the temporary transfer of a Kenyan prisoner to proceed, he shall forward the request to the appropriate Kenyan agency.

(2)The Kenyan agency to which a request is forwarded under subsection (1) shall make such inquiries as may be necessary to ascertain if the prisoner will consent to the transfer.

(3)The Director of Public Prosecutions may ask the ICC to give one or more of the following assurances—

(a)that the prisoner will not be released from custody without the prior approval of the Director of Public Prosecutions;

(b)that the prisoner will be returned to Kenya without delay in accordance with arrangements agreed to by the Director of Public Prosecutions;

(c)assurances relating to such other matters as he thinks appropriate.

[Act No. 19 of 2023, Sch.]

92. Director of Public Prosecutions may arrange for transfer

(1)The Director of Public Prosecutions may authorise the temporary transfer of a Kenyan prisoner to the ICC if he is satisfied that—

(a)the prisoner has consented to giving the evidence or assistance requested; and

(b)the ICC has given adequate assurances where appropriate.

(2)If the Director of Public Prosecutions authorises the temporary transfer of the prisoner to the ICC, he may—

(a)direct that the prisoner be released from the prison in which that person is detained, for the purpose of the transfer to the ICC; and

(b)make arrangements for the prisoner to travel to the ICC in the custody of—

(i)a member of the National Police Service;

(ii)a prison officer; or

(iii)a person authorised for the purpose by the ICC.

(3)A direction given by the Director of Public Prosecutions under subsection (2) in respect of a prisoner is sufficient authority for the release of the prisoner from the prison in which the prisoner is detained, for the purposes of the direction.

(4)Every person released under a direction given under subsection (2) is to be treated, for the purposes of sections 122, 123 and 124 of the Penal Code (Cap. 63), (which relate to rescue or escape from lawful custody), as continuing to be in lawful custody while in Kenya during the period of that release.[Act No. 19 of 2023, Sch.]

93. Effect of transfer on prisoner’s sentence

(1)If a prisoner who is charged with or convicted of an offence against the law of Kenya is transferred to the ICC under section 92, the provisions of section 94 shall apply to any period that the person spends in custody outside Kenya in connection with the request before sentence is imposed for the Kenyan offence.

(2)If a prisoner who is serving a sentence for a Kenyan offence is transferred to the ICC under section 92—

(a)the prisoner is to be treated, while in custody outside Kenya in connection with the request, as being in custody for the purposes of the Kenyan sentence, which shall continue to run; and

(b)the Director of Public Prosecutions—

(i)may at any time notify the ICC that the prisoner is no longer required to be kept in custody; and

(ii)shall notify the ICC if the prisoner is no longer liable to be detained in a Kenyan prison.

[Act No. 19 of 2023, Sch.]

94. Request for information about time spent in custody overseas

(1)If a prisoner who is charged with or convicted of an offence against the law of Kenya (in this section referred to as "the Kenyan offence") is transferred to the ICC under section 92 before sentence is imposed for the Kenyan offence, the Director of Public Prosecutions may—

(a)advise the ICC of the date on which the prisoner was sentenced for the Kenyan offence; and

(b)request the ICC to provide a certificate recording the total period during which the prisoner was detained outside Kenya in connection with the request until sentence was imposed for the Kenyan offence.

(2)A certificate obtained under subsection (1) shall be presumed to be accurate in the absence of any evidence to the contrary.

(3)The Director of Public Prosecutions may issue a certificate setting out the date and period specified in subsection (1) if—

(a)the ICC does not provide a certificate within a reasonable time after the Director of Public Prosecutions makes a request under subsection (1); and

(b)the Director of Public Prosecutions is satisfied on such information that he has that an accurate calculation can be made of the period referred to in paragraph (b) of subsection (1).

[Act No. 19 of 2023, Sch.]

Evidence

95. Assistance in examining places or sites

(1)Where the ICC requests assistance under paragraph 8 of article 19, article 56, article 64 or paragraph 1(g) of article 93 of the Rome Statute in examining places or sites in Kenya, the Director of Public Prosecutions shall give authority for the request to proceed if he is satisfied that the request relates to an investigation being conducted by the Prosecutor or any proceedings before the ICC.

(2)If the Director of Public Prosecutions gives authority for the request to proceed—

(a)he shall forward the request to the appropriate Kenyan agency; and

(b)that agency shall, without delay—

(i)use its best endeavours to undertake the examination of the place or site in the manner that the ICC has requested;

(ii)make such report on the examination as it considers to be appropriate in the circumstances; and

(iii)deliver the report of the examination to the Director of Public Prosecutions.

(3)This section does not confer on any person a power to enter a place or site.[Cf. Rome Statute, articles 19(8), 56, 64, 93(1)(g)][Act No. 19 of 2023, Sch.]

96. Request for search and seizure

(1)Where the ICC makes a request under paragraph 8 of article 19, article 56, article 64 or paragraph 1(h) of article 93 of the Rome Statute for search and seizure, the Director of Public Prosecutions shall give authority for the request to proceed if he is satisfied that—

(a)the request relates to an investigation being conducted by the Prosecutor or any proceedings before the ICC; and

(b)any thing relevant to the investigation or proceedings is or may be located in Kenya.

(2)If the Director of Public Prosecutions gives authority for the request to proceed, he may authorise a member of the National Police Service, in writing, to apply to a Judge of the High Court for a search warrant under section 97.[Cf. Rome Statute, articles 19(8), 56, 64, 93(1)(b)][Act No. 19 of 2023, Sch.]

97. Issue of search warrant

(1)Where a Judge of the High Court, on an application in writing made on oath or affirmation by a member of the National Police Service, is satisfied that there are reasonable grounds for believing that there is in or on any place or thing—

(a)any thing on or in respect of which an international crime has been, or is suspected of having been, committed; or

(b)anything that may be evidence as to the commission of any such crime, the Judge shall issue a warrant in respect of that thing.

(2)A Judge shall not issue a warrant under this section unless the application contains, or the applicant otherwise supplies to the Judge, such information as the Judge requires concerning the grounds on which the warrant is sought.

(3)A Judge may issue a warrant under this section subject to such conditions as he thinks fit.

98. Form and content of search warrant

A warrant issued under section 97 shall—

(a)be in the prescribed form;

(b)be directed to a member of the National Police Service by name, or to any class of members of the police specified in the warrant, or generally to every member of the National Police Service; and

(c)specify any conditions that the Judge has imposed under section 97 (3).

99. Powers conferred by warrant

(1)Subject to any conditions specified in the warrant under section 98, a warrant issued under section 97 authorises the member of the National Police Service executing the warrant—

(a)to enter and search the place or thing specified in the warrant at any time by day or night during the currency of the warrant;

(b)to use such assistants as may be reasonable in the circumstances for the purpose of the entry and search;

(c)to use such force as is reasonable in the circumstances for the purposes of effecting entry, and for breaking open any thing in or on the place searched; and

(d)to search for and seize any thing referred to in section 97(1).

(2)A person called on to assist any member of the National Police Service executing a warrant issued under section 97 has the powers described in paragraphs (c) and (d) of subsection (1).

100. Power to stop vehicles

(1)A member of the National Police Service may stop a vehicle (other than an aircraft which is airborne) for the purpose of exercising a search power conferred by a warrant issued under section 97.

(2)A person who fails to stop a vehicle when required to do so by virtue of this section is guilty of an offence and shall be liable on conviction to imprisonment for a term not exceeding six months or to a fine, or both.

101. Person executing warrant to produce evidence of authority

Every member of the National Police Service executing any warrant issued under section 97—

(a)shall have that warrant with him;

(b)shall produce it on initial entry and, if requested, at any subsequent time; and

(c)shall, if requested at the time of the execution of the warrant or at any subsequent time, provide a copy of the warrant within seven days after the request is made.

102. Notice of execution of warrant

(1)Every member of the National Police Service who executes a warrant issued under section 97 shall, not later than seven days after the seizure of any thing under that warrant, give to the owner or occupier of the place or thing searched, and to every other person whom the member of the National Police Service has reason to believe may have an interest in the thing seized, a written notice specifying—

(a)the date and time of the execution of the warrant;

(b)the identity of the person who executed the warrant; and

(c)the thing seized under the warrant.

(2)If the warrant is executed, a report on the execution of the warrant, together with a copy of any notice given under subsection (1) shall be sent to the Director of Public Prosecutions, without delay.

(3)If the warrant is not able to be executed, a report explaining the reasons for this shall be sent to the Director of Public Prosecutions without delay.[Act No. 19 of 2023, Sch.]

103. Disposal of things seized

(1)If a member of the National Police Service seizes a thing under a warrant issued under section 97, it shall be delivered into the custody and control of—

(a)the Inspector-General of Police; or

(b)a commissioned officer of police designated by the Inspector-General of Police to receive things seized under this Act.

(2)The Inspector-General of Police or designated officer shall—

(a)inform the Director of Public Prosecutions, without delay, that the thing has been so delivered;

(b)retain the thing for a period not exceeding three months from the day on which the thing was seized, pending the Director of Public Prosecutions’s direction under subsection (3) about how to deal with it; and

(c)comply with any direction that the Director of Public Prosecutions gives him.

(3)The Director of Public Prosecutions may, by written notice, give the Inspector-General of Police or the designated officer a direction—

(a)requiring the Commissioner or designated officer to send the thing to the ICC; or

(b)requiring the Commissioner or designated officer to deal with it in some other way.

(4)The Director of Public Prosecutions shall direct the Inspector-General of Police or the designated officer to return the thing seized to the person from whose possession it was seized as soon as practicable, if—

(a)the ICC advises that the thing is not required for the Prosecutor’s investigation or its proceedings; or

(b)no other direction is given by the Director of Public Prosecutions before the expiry of three months from the day on which the thing was seized.

(5)Notwithstanding subsection (4), the Director of Public Prosecutions may refuse to return the thing to the person from whom it was seized if—

(a)the thing is the subject of a dispute as to who is entitled to it;

(b)the thing is required for the investigation of an offence within the jurisdiction of Kenya; or

(c)possession of the thing by the person would be unlawful in Kenya.

[Act No. 19 of 2023, Sch.]

104. Facilitating provision of records and documents

(1)Where the ICC makes a request under paragraph 1(i) of article 93 of the Rome Statute for the provision of records and documents, including official records and documents, the Director of Public Prosecutions shall give authority for the request to proceed if he is satisfied that—

(a)the request relates to an investigation being conducted by the Prosecutor or any proceedings before the ICC; and

(b)the document or record sought is or may be in Kenya.

(2)If the Director of Public Prosecutions gives authority for the request to proceed—

(a)he shall forward the request to the appropriate Kenyan agency; and

(b)that agency shall, without delay—

(i)use its best endeavours to locate and make available the document or record sought;

(ii)make such report on its endeavours as it considers to be appropriate in the circumstances; and

(iii)deliver the document or record, if located, to the Director of Public Prosecutions.

(3)This section does not confer on any person power to require the production of a document or record.[Cf. Rome Statute, article 93 (1)(i)][Act No. 19 of 2023, Sch.]

105. Protecting victims and witnesses and preserving evidence

(1)This section shall apply if the ICC requests—

(a)assistance under paragraph 1(j) of article 93 of the Rome Statute in protecting victims and witnesses or preserving evidence; or

(b)assistance under paragraph 8 of article 19, or paragraphs 2 or 3 of article 56, in preserving evidence.

(2)The Director of Public Prosecutions shall give authority for the request to proceed if he is satisfied that—

(a)the request relates to an investigation being conducted by the Prosecutor or any proceedings before the ICC; and

(b)the assistance sought is not prohibited by Kenyan law.

(3)If the Director of Public Prosecutions gives authority for the request to proceed—

(a)he shall—

(i)take such steps as he thinks appropriate in the particular case; and

(ii)forward the request to the appropriate Kenyan agency; and

(b)that agency shall, without delay—

(i)use its best endeavours to give effect to the request;

(ii)make such report on its endeavours as it considers to be appropriate in the circumstances; and

(iii)deliver the report to the Director of Public Prosecutions.

[Cf. Rome Statute, articles 19(8), 56(2) and (3), 68, 93(1)(j)][Act No. 19 of 2023, Sch.]

Identifying, Freezing or Seizing Property associated with International Crimes

106. Request relating to property associated with crime

Where the ICC requests assistance under paragraph 1(k) of article 93 of the Rome Statute in identifying, tracing and freezing, or seizing, any property for the purpose of eventual forfeiture, the Director of Public Prosecutions shall give authority for the request to proceed if he is satisfied that—

(a)the request relates to an international crime that is being investigated by the Prosecutor, or which is the subject of proceedings before the ICC; and

(b)the property concerned is or may be located in Kenya.

[Cf. Rome Statute, articles 57(3)(e), 93(1)(k)][Act No. 19 of 2023, Sch.]

107. Director of Public Prosecutions may authorise measures

If the Director of Public Prosecutions gives authority for the request for assistance in identifying, tracing and freezing, or seizing, property to proceed, he may authorise the appropriate Kenyan authority to apply for one or more of the following orders or warrants—(a)a search warrant in respect of property under Part B of the Second Schedule;(b)a restraining order under Part C of the Second Schedule;(c)a production order under Part D of the Second Schedule;(d)a monitoring order under Part E of the Second Schedule.[Act No. 19 of 2023, Sch.]

Other Types of Assistance

108. Request for other types of assistance

(1)Where the ICC requests any other type of assistance under paragraph 1(l) of article 93 of the Rome Statute for the purposes of facilitating the investigation and prosecution of crimes within the jurisdiction of the ICC, the Director of Public Prosecutions shall give authority for the request to proceed if he is satisfied that—

(a)the request relates to an investigation being conducted by the Prosecutor or any proceedings before the ICC; and

(b)the assistance sought is in accordance with Kenyan law.

(2)If the Director of Public Prosecutions gives authority for the request to proceed—

(a)he shall—

(i)take such steps as the Director of Public Prosecutions thinks appropriate in the particular case; and

(ii)forward the request to the appropriate Kenyan agency; and

(b)that agency shall, without delay—

(i)use its best endeavours to give effect to the request;

(ii)make such report on its endeavours as it considers to be appropriate in the circumstances; and

(iii)deliver the report to the Director of Public Prosecutions.

(3)If the Director of Public Prosecutions considers that the assistance sought cannot lawfully be provided, he shall, before refusing the request, and in accordance with paragraph 5 of article 93 of the Rome Statute—

(a)consult with the ICC; and

(b)consider whether the assistance can be provided subject to conditions or whether it can be provided at a later date or in an alternative manner.

[Cf. Rome Statute, article 93(1)(l), (2) and (5)][Act No. 19 of 2023, Sch.]

Restrictions on Provision of Assistance

109. Refusal of assistance

(1)The Director of Public Prosecutions shall refuse a request by the ICC for assistance to which this Part applies if—

(a)the ICC does not accept the conditions suggested in order to implement the request as contemplated by paragraph 5 of article 93 of the Rome Statute and section 108(3);

(b)the ICC determines under article 18 or article 19 of the Rome Statute that the case to which the request relates is inadmissible and section 113 (4) applies; or

(c)section 115(4) applies.

(2)The Director of Public Prosecutions may refuse a request by the ICC to which this Part applies if—

(a)Part VIII (which relates to the protection of national security or third party information) applies;

(b)there are competing requests from the ICC and a State that is not a party to the Rome Statute relating to the same conduct and section 59 (4) (as applied by section 114) applies; or

(c)there are competing requests from the ICC and a State that is not a party to the Rome Statute relating to different conduct and section 60 (3) (as applied by section 114) applies.

[Act No. 19 of 2023, Sch.]

110. Postponement of execution of assistance

(1)The Director of Public Prosecutions may postpone the execution of a request for assistance under this Part if, and only if—

(a)the execution of the request would interfere with an ongoing investigation or prosecution for a different offence and section 112 applies;

(b)a ruling on admissibility is pending before the ICC and section 113 applies;

(c)there are competing requests from the ICC and from another State to which Kenya is under an international obligation and section 114(2) (a) applies;

(d)the request is for assistance under paragraph 1(l) of article 93 of the Rome Statute and is one to which section 108(3) applies; or

(e)a request of the kind referred to in section 115(2)(c) is made to the ICC.

(2)Even if a case is one to which subsection (1) applies, the Director of Public Prosecutions may decide not to postpone the execution of the request, and in that event the request shall be dealt with in accordance with this Part.

(3)If the Director of Public Prosecutions postpones the execution of a request for assistance under this Part, the postponement may be for a reasonable time and may, if the Director of Public Prosecutions considers it desirable, be extended from time to time.[Cf. Rome Statute, articles 93(9), 94, 95][Act No. 19 of 2023, Sch.]

111. Procedure if execution of assistance precluded under Kenyan law

If the execution of a particular measure of assistance specified in a request to which this Part applies is prohibited in Kenya, then, notwithstanding any other provision in this Part, the Director of Public Prosecutions shall—

(a)consider whether the assistance can be provided in another manner or subject to conditions; and

(b)promptly consult with the ICC in order to resolve the matter.

[Cf. Rome Statute, article 93 (3)][Act No. 19 of 2023, Sch.]

112. Postponement where ongoing investigation or prosecution

(1)If the immediate execution of a request by the ICC for assistance to which this Part applies would interfere with an ongoing investigation or prosecution of a case different from that to which the request relates, the Director of Public Prosecutions may postpone the execution of the request for a period of time agreed between him and the ICC.

(2)Notwithstanding section 110(3), the period of postponement may be no longer than is reasonably necessary to complete the investigation or prosecution.

(3)Before making a decision to postpone the execution of a request, the Director of Public Prosecutions shall consider whether the assistance could be provided immediately subject to certain conditions.

(4)If the Director of Public Prosecutions decides to postpone the execution of a request and the ICC seeks assistance in the preservation of evidence under paragraph 1(j) of article 93 of the Rome Statute, he shall deal with that request in accordance with this Part.[Cf. Rome Statute, article 94][Act No. 19 of 2023, Sch.]

113. Postponement where admissibility challenge

(1)This section shall apply if the ICC is considering an admissibility challenge under article 18 or article 19 of the Rome Statute in respect of a case that a request to which this Part applies relates.

(2)If the ICC has not made an order under article 18 or article 19 of the Rome Statute allowing the Prosecutor to collect evidence to which the request relates, the Director of Public Prosecutions may postpone the execution of the request until the ICC’s determination on admissibility is issued.

(3)If the ICC has made an order under article 18 or article 19 of the Rome Statute allowing the Prosecutor to collect evidence to which the request relates, the Director of Public Prosecutions may not postpone the execution of a request under this section but shall deal with it under this Part.

(4)If the ICC determines that the case to which the request relates is inadmissible, the request shall be refused.

(5)If the ICC determines that the case to which the request relates is admissible, and there is no other ground for refusing or postponing the request, the request shall continue to be dealt with under this Part.[Cf. Rome Statute, article 95][Act No. 19 of 2023, Sch.]

114. Competing requests

(1)If the Director of Public Prosecutions receives competing requests for assistance from the ICC and from another State to which Kenya is under an obligation to respond, he shall endeavour, after consultation with the ICC and the other State, to satisfy both requests.

(2)For the purposes of subsection (1), the Director of Public Prosecutions may do either or both of the following—

(a)postpone the execution of either of the competing requests;

(b)attach conditions to the provision of assistance under either or both of the requests.

(3)If it is not possible to resolve the issue by consultation, the method of dealing with the competing requests shall be resolved in accordance with article 90 of the Rome Statute, and sections 57 to 61 shall apply, with any necessary modifications.[Cf. Rome Statute, articles 90, 93(9)(a)][Act No. 19 of 2023, Sch.]

115. Requests involving conflict with other international obligations

(1)If a request by the ICC for assistance to which this Part applies concerns persons who, or information or property that, are subject to the control of another State or an international organisation under an international agreement, the Director of Public Prosecutions shall inform the ICC to enable it to direct its request to the other State or international organisation.

(2)Where—

(a)the ICC makes a request for assistance;

(b)the ICC has not previously made a final determination on whether or not paragraph 1 of article 98 of the Rome Statute applies to that request; and

(c)a request is made to the ICC to determine whether or not paragraph 1 of article 98 applies to the request for surrender, the Cabinet Secretary may postpone the request for assistance until the ICC advises whether or not it wishes to proceed with the request for assistance.

(3)If the ICC advises that it does not intend to proceed with the request, the request for assistance shall be refused.

(4)If the ICC advises that it intends to proceed with the request for assistance, and there is no other ground for refusing or postponing the request, the request shall continue to be dealt with under this Part.[Cf. Rome Statute, article 98(1)][Act No. 19 of 2023, Sch.]

Miscellaneous

116. Effect of authority to proceed

At any time before a formal response is sent to the ICC, the Director of Public Prosecutions may decide that a request by the ICC for assistance to which this Part applies will be refused or the execution of the request postponed, on a ground specified in section 109 or 110, even if he has previously given authority for the request to proceed.[Act No. 19 of 2023, Sch.]

117. Request may relate to assistance sought by defence

A request made by the ICC under Part 9 of the Rome Statute to assist a defendant in the preparation of his defence shall be dealt with in the same manner as a like request to assist the Prosecutor.[Cf. Rome Statute, article 57(3)(b).]

118. Execution of request by Prosecutor

(1)The Prosecutor may execute a request that does not involve any compulsory measures on Kenyan territory in the circumstances specified in paragraph 4 of article 99 of the Rome Statute.

(2)If the Director of Public Prosecutions identifies difficulties with the execution of a request to which paragraph 4 (b) of article 99 of the Rome Statute relates, he shall without delay consult with the ICC in order to resolve the matter.

(3)The provisions of this Act and the Rome Statute which allow a person heard or examined by the ICC under article 72 of the Rome Statute to invoke restrictions designed to prevent disclosure of confidential information connected with national security shall apply to the execution of requests for assistance under article 99 of the Rome Statute.[Cf. Rome Statute, article 99(4) and (5)][Act No. 19 of 2023, Sch.]

Part VI – ENFORCEMENT OF PENALTIES

Orders relating to Victim Reparation

119. Assistance with enforcement of orders for victim reparation

(1)This section shall apply if—

(a)the ICC—

(i)makes an order under article 75 of the Rome Statute requiring reparation; and

(ii)requests that the order be enforced in accordance with article 109 of the Rome Statute; and

(b)neither the conviction in respect of which the order was imposed nor the order requiring reparation is subject to further appeal.

(2)The Director of Public Prosecutions shall give authority for the request to proceed if he is satisfied that the order—

(a)requires reparation; and

(b)is of a kind that can be enforced in the manner provided in this section.

(3)If the Director of Public Prosecutions gives authority for the request to proceed—

(a)he shall refer the request to the appropriate Kenyan agency; and

(b)that agency shall, without delay—

(i)in a case where the order requires a monetary payment, take such steps as are necessary to enforce the order as if it were a judgment of the High Court in favour of the Republic in a civil matter for an amount equal to the amount of the monetary payment;

(ii)in a case where the order requires the restitution of assets, property or other tangible items, take such steps as are necessary to enforce the order as if it were a writ of restitution awarded in favour of the Republic under section 178 of the Criminal Procedure Code (Cap. 75); or

(iii)in a case where the order requires another remedy, take such steps as are necessary to enforce the order as if it were enforceable under the High Court Rules; and

(c)that agency shall, without delay, make such report to the Director of Public Prosecutions on the results of any action taken as it considers to be appropriate in the circumstances.

(4)Nothing in this section limits or affects the provision of other types of assistance to the ICC in relation to an order made under article 75 of the Rome Statute.[Cf. Rome Statute, articles 75(5) and (6), 109(1), Act No. 19 of 2023, Sch.]

120. Enforcement of fines

(1)This section shall apply if—

(a)the ICC—

(i)orders payment of a fine under paragraph 2(a) of article 77 of the Rome Statute; and

(ii)requests that the order be enforced in accordance with article 109 of the Rome Statute; and

(b)neither the conviction in respect of which the order was imposed nor the order for payment of a fine is subject to further appeal.

(2)The Director of Public Prosecutions shall give authority for the request to proceed if he is satisfied that the order—

(a)involves a monetary penalty; and

(b)is of a kind that can be enforced in the manner provided in this section.

(3)If the Director of Public Prosecutions gives authority for the request to proceed—

(a)he shall refer the request to the appropriate Kenyan agency; and

(b)that agency shall, without delay—

(i)take such steps as are necessary to enforce the order as if it were a fine imposed on conviction under the Penal Code (Cap. 63); and

(ii)make such report to the Director of Public Prosecutions on the results of any action taken as it considers to be appropriate in the circumstances.

(4)Upon recovery the fine shall be disposed of in such manner as the ICC order may specify.

(5)Nothing in this section limits or affects the provision of other types of assistance to the ICC in relation to a penalty imposed under article 77 of the Rome Statute.[Cf. Rome Statute, articles 77(2)(a), 109(1)][Act No. 19 of 2023, Sch.]

Assistance with Enforcement of Forfeiture Orders

121. Request for forfeiture of property

Where—

(a)the ICC makes an order under paragraph 2(b) of article 77 of the Rome Statute for the forfeiture of any property and requests assistance under paragraph 1 of article 109 of the Rome Statute to enforce the forfeiture order; and

(b)neither the conviction in respect of which the order was imposed nor the forfeiture order is subject to further appeal, the Director of Public Prosecutions may act on the request if he is satisfied that the order is of a kind that can be enforced in the manner provided in sections 122 to 126.

[Cf. Rome Statute, articles 77(2)(b), 109(1)][Act No. 19 of 2023, Sch.]

122. Application for registration of forfeiture order

(1)The Director of Public Prosecutions may apply to the High Court for the registration of a forfeiture order or an amendment to such an order.

(2)On an application under subsection (1), the Court shall register the order or the amendment to the order under section 123 if it is satisfied that the order or amendment to the order is in force.[Act No. 19 of 2023, Sch.]

123. Manner of registration of order

(1)A forfeiture order, or an amendment to such an order, shall be registered in the High Court by the registration in accordance with the prescribed procedure, if any, of—

(a)a copy of the order or amendment sealed by the ICC; or

(b)a copy of the order or amendment authenticated in accordance with subsection (2).

(2)A document is authenticated for the purposes of subsection (1)(b) if it purports to be—

(a)signed or certified by a Judge, the Registrar, the Deputy Registrar, or an authorized member of the staff of the ICC; or

(b)authenticated in any other manner authorised by the Rome Statute or the ICC Rules.

(3)An amendment to a forfeiture order does not, for the purposes of this Act, have any effect until it is registered.

(4)A facsimile copy of a sealed or authenticated copy of an order or an amendment of an order has the same effect, for the purposes of this Act, as the sealed or authenticated copy that is not a facsimile.

(5)Notwithstanding subsection (4), registration effected by means of a facsimile copy ceases to have effect on the expiry of the period of twenty-one days commencing on the date of registration unless, before the expiry of that period, the sealed or authenticated copy is registered.

124. Notice of registration of order

If the High Court registers an order under section 123, the Court may direct the Director of Public Prosecutions to do either or both of the following—

(a)give notice of the registration, in the manner and within the time the Court considers appropriate, to such persons (other than a person convicted of an offence in respect of which the order was made) as the Court has reason to believe may have an interest in the property;

(b)publish notice of the registration in the manner and within the time the Court considers appropriate.

[Act No. 19 of 2023, Sch.]

125. Effect of registration of order

(1)Where a forfeiture order is registered under section 123—

(a)the property shall, to the extent of the estate, interest or rights (if any) specified in the forfeiture order, be thereby vested in the Republic;

(b)the property is so vested subject to every charge or encumbrance to which the property was subject immediately before the forfeiture order was made and, in the case of land under the provisions of the Registration of Titles Act ( Cap. 281), is subject to every mortgage, lease or other interest recorded under that Act;

(c)if the property is not already in the possession of the Republic, the Republic may take possession of the property;

(d)the property shall not, except with the leave of the High Court and in accordance with any directions of the Court, be disposed of, or otherwise dealt with, by or on behalf of the Republic, before the relevant time; and

(e)if, at the relevant time, the forfeiture order has not been discharged or revoked—

(i)the property shall be disposed of in accordance with any direction of the High Court; and

(ii)the proceeds shall be dealt with in accordance with section 130.

(2)In subsection (1), "relevant time", in relation to property that is the subject of a forfeiture order, means—

(a)if no appeal against either the forfeiture order or the conviction in respect of which it was made is lodged within the period prescribed for doing so—the expiration of that period; or

(b)if any such appeals are lodged—the time when all such appeals have lapsed or been finally determined.

(3)Subsection (1) shall have effect subject to sections 127 and 128.

126. Forfeiture order may be treated as pecuniary penalty order

(1)If the Director of Public Prosecutions is unable to give effect to a forfeiture order, the Director of Public Prosecutions shall take measures to recover—

(a)the value specified by the ICC as the value of the property ordered by the ICC to be forfeited; or

(b)if the ICC has not specified the value of the property, the value that, in the opinion of the Director of Public Prosecutions, is the value of the property ordered by the ICC to be forfeited.

(2)In a case to which subsection (1) applies, the forfeiture order is to be treated as a fine ordered to paid under the Penal Code (Cap. 63) for the equivalent amount and may be enforced accordingly as if it were a fine imposed on the date the forfeiture order was registered under this Act.[Cf. Rome Statute, article 109(2)][Act No. 19 of 2023, Sch.]

127. Third parties may apply for relief

(1)If a forfeiture order is registered under section 123, a person (other than a person convicted of an offence in respect of which the order was made) who claims an interest in any of the property to which the order relates may apply to the High Court for an order under section 128.

(2)A person on whom notice of the hearing of the ICC held in connection with the making of the forfeiture order was served, or who appeared at the hearing, may not make an application under subsection (1) without the leave of the High Court.

(3)The High Court shall not grant leave under subsection (2) unless it is satisfied that—

(a)the applicant had good reason for failing to attend the hearing held by the ICC in connection with the making of the forfeiture order;

(b)evidence proposed to be adduced by the applicant in connection with the application under subsection (1) was not reasonably available to the applicant at the time of the hearing of the ICC; or

(c)there are special reasons justifying the grant of leave.

(4)An application under subsection (1) shall be made before the expiry of the period of two months beginning on the date on which the forfeiture order is registered in the High Court.

(5)Notwithstanding subsection (4), the High Court may grant a person leave to make an application under subsection (1) after the expiry of the period referred to in subsection (4) if it is satisfied that the person’s failure to apply within that period was not owing to any neglect on the person’s part.

(6)A person who makes an application under subsection (1) shall serve notice of the application on the Director of Public Prosecutions, who shall be a party to any proceedings on the application.

(7)This section and section 128 shall have effect subject to any contrary provision in the Rome Statute or the ICC Rules.[Cf. Rome Statute, articles 77(2)(b), 109(1)][Act No. 19 of 2023, Sch.]

128. Court may grant relief to third party

(1)This section shall apply if—

(a)a person applies to the High Court for an order under this section in respect of an interest in property; and

(b)the Court is satisfied that the applicant’s claim is valid.

(2)The High Court shall make an order—

(a)declaring the nature, extent, and value of the applicant’s interest in the property; and

(b)either—

(i)directing that the interest be transferred to the applicant; or

(ii)declaring that payment be made to the applicant of an amount equal to the value of the interest declared by the Court.

(3)Notwithstanding subsection (2), the Court may, if it thinks fit, refuse to make an order under that subsection if it is satisfied that—

(a)the applicant was, in any respect, involved in the commission of the offence in respect of which the order was made; or

(b)although the applicant acquired the interest at the time of or after the commission of the offence, it was not acquired in good faith and for value.

129. Cancellation of registration of order

(1)If a forfeiture order has been registered under section 123, the Director of Public Prosecutions may apply to the High Court for cancellation of the registration.

(2)Without limiting the generality of subsection (1), the Director of Public Prosecutions may act under that subsection in relation to a forfeiture order if—

(a)the order has, since its registration in Kenya, ceased to have effect;

(b)the order was registered in contravention of section 121;

(c)the Director of Public Prosecutions considers that cancellation is appropriate having regard to the arrangements in force with the ICC in relation to the enforcement of orders of that kind; or

(d)the ICC so requests.

(3)If, in accordance with subsection (1), the Director of Public Prosecutions applies to the High Court for cancellation of the registration of a forfeiture order, the Court shall cancel the registration accordingly.

(4)If a forfeiture order registered under section 123 is discharged (in whole or in part) or is revoked, that discharge or revocation constitutes a ground for an application for cancellation of the order under this section.[Act No. 19 of 2023, Sch.]

Transfer of Money or Property Recovered under this Part

130. Money or property recovered to be transferred to ICC

(1)Any money or property, including the proceeds of sale of property, recovered as a result of the enforcement under this Part of an order of the ICC shall be transferred to the ICC.

(2)Subsection (1) shall have effect notwithstanding any other provision in this Part or in any other Act.[Cf. Rome Statute, articles 75(5), 109(3).]

Part VII – PERSONS IN TRANSIT TO ICC OR SERVING SENTENCES IMPOSED BY ICC

Person in Transit

131. Transit by person being surrendered or transferred to ICC

(1)This section and sections 132, 133, and 145 to 151 shall apply to a person (hereinafter referred to as "the transferee") who—

(a)is being surrendered to the ICC by another State under article 89 of the Rome Statute;

(b)is a person to whom paragraph 7 of article 93 of the Rome Statute applies, and is being temporarily transferred to the ICC by another State; or

(c)is a person sentenced to imprisonment by the ICC and who is being transferred to or from the ICC, or between States, in connection with that sentence.

(2)The transferee may be transported through Kenya for the purpose of being surrendered or transferred to the ICC or to another State, as the case may be.

(3)Before the transferee is transported through Kenya under subsection (2), the ICC shall first transmit a request for transit in accordance with article 87 of the Rome Statute that contains the following information and documents—

(a)a description of the transferee;

(b)in the case of a person described in subsection (1)(a)—

(i)a brief statement of the facts of the case and their legal characterisation; and

(ii)a copy of the warrant for arrest and surrender;

(c)in the case of a person described in subsection (1)(b), such information as the Cabinet Secretary may request about the reasons for the temporary transfer.

(4)Notwithstanding subsection (3), the Cabinet Secretary shall not refuse a request for transit unless the Cabinet Secretary considers that transit through Kenya would impede or delay the surrender or transfer of the transferee.

(5)Notwithstanding subsection (3), no authorisation for transit is required if the transferee is transported by air and no landing is scheduled on Kenyan territory.

(6)If an unscheduled landing occurs on Kenyan territory, the Cabinet Secretary may require the ICC to submit a request for transit of the transferee under subsection (3) as soon as is reasonably practicable.[Cf. Rome Statute, article s 89(3), 93(1)(f) and (7).]

132. Transferee to be held in custody

(1)The transferee shall, during the period of transit, be detained in custody in accordance with subsection (2).

(2)If the aircraft or ship that transports a transferee lands or calls at any place in Kenya—

(a)the person holding the transferee in custody before the landing or call is made may hold the transferee in his custody or in police custody for a period not exceeding ninety-six hours; and

(b)a High Court may, on the application of a member of the National Police Service, order that the transferee be held in custody for such further period or periods as the Court considers reasonably necessary to facilitate the transportation of the transferee to the ICC or to another State, as the case may be.

(3)If an unscheduled landing occurs and the ICC is required under section 131(6) to submit a request for transit, the transferee shall be held in custody under subsection (2).

(4)If subsection (3) applies, the period of detention of the transferee may not be extended beyond ninety-six hours from the time of the unscheduled landing, unless the request for transit from the ICC is received within that time.

(5)If the High Court orders, under subsection (2)(b), that a transferee be held in custody, the transferee may be detained in a prison or any other place in which a person could be detained under section 38.[Cf. Rome Statute, article 89(3).]

133. Cabinet Secretary to make removal order or issue certificate

(1)If a transferee is not removed before or at the expiry of all periods of custody under section 132(2), the Cabinet Secretary shall either—

(a)make a removal order under section 148; or

(b)issue a certificate under section 145 giving the transferee temporary authority to remain in Kenya.

(2)Notwithstanding subsection (1), no removal order may be made under section 148 unless—

(a)the Cabinet Secretary first consults with the ICC; and

(b)it is not possible for the Cabinet Secretary and the ICC to reach agreement relating to the prompt removal of the transferee.

(3)The Cabinet Secretary shall not issue the certificate referred to in subsection (1)(b) unless the Cabinet Secretary is satisfied that, because of the special circumstances of the transferee, it would be inappropriate to make a removal order.

Enforcement of Sentences in Kenya

134. Kenya may act as State of enforcement

(1)The Cabinet Secretary may advise the ICC that Kenya is willing to allow persons who are ICC prisoners as a result of being sentenced to imprisonment by the ICC to serve those sentences in Kenya, subject to any specified conditions.

(2)If advice is given under subsection (1), the Cabinet Secretary may, at any time, advise the ICC—

(a)of further conditions that Kenya wishes to impose in relation to the serving of sentences in Kenya by ICC prisoners; or

(b)that it wishes to withdraw a condition referred to in subsection (1) or paragraph (a).

(3)Before providing advice under subsection (1) or (2), the Cabinet Secretary shall consult with—

(a)the Inspector-General of Police;

(b)the Principal Secretary in the Ministry responsible for prisons; and

(c)the Principal Secretary in the Ministry responsible for labour.

(4)If advice is given under subsection (1), the Cabinet Secretary may, at any time, advise the ICC that Kenya is no longer willing to allow ICC prisoners to serve their sentences in Kenya.

(5)Any advice given under subsection (4) does not affect the enforcement of sentences for which the Cabinet Secretary has accepted the designation of the ICC under section 135(1)(c).[Cf. Rome Statute, article 103(1) and (2).]

135. Request for sentence to be served in Kenya

(1)This section and sections 136 to 151 shall apply if—

(a)the Cabinet Secretary has given advice under section 134(1) and has not withdrawn that advice under section 134(4);

(b)the ICC imposes a sentence of imprisonment on a person—

(i)convicted of an international crime; or

(ii)convicted of an offence against the administration of justice;

and

(c)the ICC designates Kenya, under article 103 of the Rome Statute, as the State in which the sentence is to be served.

(2)If the Cabinet Secretary accepts the designation, the Cabinet Secretary shall issue an order for detention in the prescribed form, and forward that order and any information about the person supplied by the ICC to each of the following persons—

(a)the Inspector-General of Police;

(b)the Principal Secretary in the Ministry responsible for prisons; and

(c)the Principal Secretary in the Ministry responsible for labour.

(3)The Cabinet Secretary may, at any time, ask the ICC to give one or more of the following assurances—

(a)that all or part of the transportation costs incurred by Kenya in the enforcement of the sentence will be met by the ICC;

(b)that the ICC will arrange for the transportation of the ICC prisoner who is the subject of the designation—

(i)to Kenya, for the purpose of enabling his sentence to be enforced in Kenya; or

(ii)from Kenya, on the completion of the sentence, or if the ICC prisoner is to be transferred to another country;

(c)an assurance relating to such other matters as the Cabinet Secretary thinks appropriate.

136. Prisoner to be held in custody

(1)If the Cabinet Secretary accepts the designation of Kenya as the State in which a sentence of imprisonment imposed by the ICC is to be served, the ICC prisoner may be transported to Kenya in the custody of—

(a)a member of the National Police Service;

(b)a prison officer; or

(c)a person authorised for the purpose by the ICC.

(2)On arrival in Kenya or, if the person is already in Kenya when the sentence is imposed, on the imposition of the sentence, the ICC prisoner shall be detained in accordance with the Prisons Act (Cap. 90) as if the prisoner had been sentenced to imprisonment under Kenyan law.

(3)Notwithstanding subsection (2) and any other enactment—

(a)the ICC prisoner has the right to communicate on a confidential basis with the ICC, without impediment from any person; and

(b)a Judge of the ICC or a member of the staff of the ICC may visit the ICC prisoner for the purpose of hearing any representations by the prisoner without the presence of any other person, except any representative of the prisoner.

[Cf. Rome Statute, articles 106, 110(1).]

137. Order for detention to act as authority for detention.

The order for detention issued by the Cabinet Secretary under section 135(2) shall, for the purposes of this Part and the Prisons Act (Cap. 90), be sufficient authority for the detention of the prisoner to which the notice relates—

(a)until the ICC prisoner completes, or is released from, the sentence or is transferred to another country; and

(b)during any further period that the ICC prisoner is required to serve the sentence if the ICC makes an order for recall of the prisoner.

138. Sentence to be served in accordance with Rome Statute

(1)The administration of a sentence of imprisonment imposed by the ICC that is served in Kenya, including any decision to release or transfer the ICC prisoner, shall be undertaken in accordance with Part 10 of the Rome Statute and the ICC Rules.

(2)If, in relation to the administration of a sentence of imprisonment that is served in Kenya by an ICC prisoner, there is any inconsistency between the provisions of the Penal Code (Cap. 63) or the Prisons Act (Cap. 90) and the provisions of the Rome Statute and the ICC Rules, the provisions of that Statute and those Rules shall prevail.[Cf. Rome Statute, articles 106(1), 110(1) and (2).]

139. Transfer of prisoner to ICC for review of sentence

(1)Where the ICC, under article 110 of the Rome Statute, decides to review the sentence of an ICC prisoner who is serving that sentence in Kenya, the Cabinet Secretary shall direct that the prisoner be transferred to the ICC for the purposes of enabling the ICC to review the prisoner’s sentence if the Cabinet Secretary is satisfied that—

(a)the prisoner is entitled to appear before the ICC at the review of the prisoner’s sentence;

(b)the ICC has requested the prisoner to appear before it at the review; or

(c)the interests of justice require the prisoner’s attendance at the ICC.

(2)If the Cabinet Secretary gives a direction under subsection (1), the Cabinet Secretary shall forward a notice of the direction to each of the following persons—

(a)the Inspector-General of Police;

(b)the Principal Secretary in the Ministry responsible for prisons; and

(c)the Principal Secretary in the Ministry responsible for labour.

(3)On the giving of a direction under subsection (1), the prisoner may be transported to the ICC and, if necessary, from the ICC in the custody of—

(a)a member of the National Police Service; or

(b)a prison officer; or

(c)a person authorised for the purpose by the ICC.

[Cf. Rome Statute, articles 105(2), 110(3) and (5).]

140. Transfer of prisoner to ICC for other purposes

(1)This section shall apply if the ICC—

(a)directs that an ICC prisoner appear before it to give evidence in another case; or

(b)requests that an ICC prisoner appear before it for any other reason.

(2)The Minister—

(a)if subsection (1)(a) applies, shall direct that the ICC prisoner be transferred to the ICC; or

(b)if subsection (1)(b) applies, may direct that the ICC prisoner be transferred to the ICC if the Cabinet Secretary is satisfied that the interests of justice require the prisoner’s attendance at the ICC.

(3)If the Cabinet Secretary gives a direction under subsection (2), section 139(2) and (3) shall apply, with any necessary modifications.

(4)This section shall not apply if the request by the ICC is a request to which section 90(1) applies.

141. Transfer of prisoner to another State to complete sentence

If an ICC prisoner of any nationality is to be transferred from Kenya to another State to complete that sentence, the prisoner may be transported from Kenya to that State in the custody of—

(a)a member of the National Police Service;

(b)a prison officer; or

(c)a person authorised for the purpose by the ICC.

[Cf. Rome Statute, article 104(1).]

142. Cabinet Secretary to make removal order or issue certificate

(1)If an ICC prisoner is to complete his sentence in Kenya or to be released at the direction of the ICC while in Kenya and the prisoner is not a Kenyan citizen, the Cabinet Secretary shall, before the date of completion or release, either—

(a)make a removal order under section 148; or

(b)issue a certificate under section 145 giving the prisoner temporary authority to remain in Kenya.

(2)The Cabinet Secretary shall not issue the certificate referred to in subsection (1)(b) unless the Cabinet Secretary is satisfied that—

(a)because of the special circumstances of the ICC prisoner, it would be inappropriate to make a removal order; or

(b)it is desirable to issue a certificate under section 145 in order to facilitate the processing of a request for extradition of the ICC prisoner, or the investigation of an offence, or to enable the prisoner to serve another sentence in Kenya, or for any other reason in the interests of justice.

(3)This section shall have effect subject to section 143.[Cf. Rome Statute, article 107(1).]

143. Special rules in certain cases

(1)An ICC prisoner serving a sentence in Kenya may—

(a)be extradited to another country in accordance with the Extradition (Commonwealth Countries) Act (Cap. 77) or the Extradition (Contiguous and Foreign Countries) Act (Cap. 76), either—

(i)at the completion of the sentence; or

(ii)during the sentence, but only for a temporary period;

(b)be required to remain in Kenya in order to serve any sentence that the prisoner is liable to serve under Kenyan law; or

(c)be required to remain in Kenya to undergo trial for an offence under Kenyan law.

(2)Notwithstanding subsection (1)—

(a)a person to whom subsection (1)(a) applies may not be extradited to another country without the prior agreement of the ICC;

(b)a person to whom subsection (1)(b) or subsection (1)(c) applies may not be required to serve a sentence in Kenya or to undergo trial for an offence under Kenyan law, as the case may be, that relates to an act or omission that occurred before the designation referred to in section 135 (1) (c), without the prior agreement of the ICC.

(3)Subsection (2) shall not apply to a person who—

(a)remains voluntarily in Kenya for more than thirty days after the date of completion of, or release from, the sentence imposed by the ICC; or

(b)voluntarily returns to Kenya after having left it.

[Cf. Rome Statute, articles 107(3), 108.]

144. Extradition of escaped ICC prisoner

(1)Where—

(a)an ICC prisoner serving a sentence in another State escapes from custody and is located in Kenya; and

(b)the State designated by the ICC as the State of enforcement of the sentence makes a request to Kenya for extradition in accordance with article 111 of the Rome Statute, the provisions of the Extradition (Commonwealth Countries) Act (Cap. 77) or the Extradition (Contiguous and Foreign Countries) Act (Cap. 76), as the case may require, shall, with any necessary modifications, apply to a request for extradition as if the request related to a person who had been convicted of an extradition offence or extradition crime within the meaning of the relevant Act.

(2)Where—

(a)an ICC prisoner serving a sentence in Kenya escapes from custody and is located in another State; and

(b)the Cabinet Secretary wishes to make a request to that State for the person’s extradition in accordance with article 111, the Cabinet Secretary may make a request for the prisoner’s extradition under the Extradition (Commonwealth Countries) Act (Cap. 77) or the Extradition (Contiguous and Foreign Countries) Act (Cap. 76), and the relevant Act shall, with any necessary modifications, apply as if the request related to a person who had been convicted of an extradition offence or extradition crime within the meaning of the relevant Act.

[Cf. Rome Statute, Article 111.]

Certificates and Removal Orders

145. Certificate giving temporary authority to remain in Kenya

(1)A certificate issued by the Cabinet Secretary under this section—

(a)may be issued for a period, not exceeding three months, specified in the certificate;

(b)may, from time to time, be renewed for one further period not exceeding three months; and

(c)may, if the Cabinet Secretary thinks fit, order that the person named in the certificate be taken into custody.

(2)The certificate is, while it remains in force, sufficient authority for the person named in the certificate to remain in Kenya.

(3)If the Cabinet Secretary issues a certificate, he may refer the person’s case to the Cabinet Secretary responsible for immigration for consideration under section 40 of the Kenya Citizenship and Immigration Act (Cap. 170) and, in that case, that section shall apply for the purposes of this section as if the person were a person required to hold a permit under that Act to be in Kenya.

(4)Except as provided in subsection (3), nothing in the Kenya Citizenship and Immigration Act (Cap. 170) shall apply to the person named in the certificate while the certificate is in force.

146. Cancellation of certificate

The Cabinet Secretary shall cancel the certificate issued under section 145 and make a removal order under section 148 in respect of a person if—

(a)where the Cabinet Secretary referred the person’s case to the Cabinet Secretary responsible for immigration under section 145(3)—

(i)the Cabinet Secretary responsible for immigration declines to grant a permit under the Kenya Citizenship and Immigration Act (Cap. 170); and

(ii)there do not appear to the Cabinet Secretary to be any other grounds on which the person should be permitted to remain in Kenya; or

(b)in any other case, there do not appear to the Cabinet Secretary to be any other grounds on which the person should be permitted to remain in Kenya.

147. Further provisions relating to certificate

(1)If a certificate issued under section 145 orders that a person be taken into custody, the certificate is sufficient authority for a member of the National Police Service to arrest the person and take him into custody.

(2)A person who is taken into custody under this section shall, unless sooner released, be brought before a Judge of the High Court—

(a)as soon as possible; and

(b)after that, every twenty-one days while the certificate is in force, to determine, in accordance with subsection (3), if the person should be detained in custody or released pending the decisions referred to in section 145.

(3)If a person is brought before a Judge of the High Court under subsection (2) , the Judge may, if the Judge is satisfied that the person is the person named in the certificate—

(a)issue a warrant for the detention of the person in custody if the Judge is satisfied that, if not detained, the person is likely to abscond; or

(b)order the release of the person subject to such conditions, if any, that the Judge thinks fit.

(4)A warrant for the detention of the person issued under subsection (3)(a) may authorise the detention of the person in a prison or any other place in which a person could be detained under section 38.

148. Removal order

(1)A removal order made by the Cabinet Secretary under this section—

(a)may either—

(i)require the person who is the subject of the order to be released into or taken into the custody of a member of the National Police Service; or

(ii)if the person is not in custody, authorise any member of the National Police Service to take the person into custody;

(b)shall specify that the person is to be taken by a member of the National Police Service and placed on board any craft for the purpose of effecting the person’s removal from Kenya; and

(c)may authorise the detention in custody of the person while awaiting removal from Kenya.

(2)The removal order shall be served on the person named in the order by personal service.

(3)If the removal order authorises the detention of the person in custody, the person may be detained—

(a)in a prison, or any other place in which a person could be detained under section 38; or

(b)at a seaport or airport.

(4)A removal order made under this section continues in force until it is executed or cancelled.

149. Delay in removal

(1)If a person is not able to be conveyed out of Kenya within forty-eight hours after service of a removal order issued under section 148, the person shall be brought before a Judge of the High Court to determine, in accordance with subsection (2), whether the person should be detained in custody or released pending removal from Kenya.

(2)If a person is brought before a Judge of the High Court under subsection (1), the Judge may, if the Judge is satisfied that the person is the person named in the order—

(a)issue a warrant for the detention of the person in custody if the Judge is satisfied that, if not detained, the person is likely to abscond; or

(b)order the release of the person subject to such conditions, if any, that the Judge thinks fit.

(3)A warrant for the detention of the person issued under subsection (2)(a) may authorise the detention of the person in any place specified in section 148(3).

150. Immigration permit not required

A person to whom this Part applies is not required to hold a permit under the Kenya Citizeship and Immigration Act (Cap. 170) if, and for so long as, he is in Kenya in accordance with this Part (whether or not he is in custody).

151. Kenyan citizens

Nothing in this Part authorises the making of a removal order under section 148 in respect of a Kenyan citizen.

Part VIII – PROTECTION OF NATIONAL SECURITY OR THIRD PARTY INFORMATION

National Security

152. National security issues to be dealt with under article 72

If an issue relating to Kenya’s national security interests arises at any stage of any proceedings before the ICC, the issue shall be dealt with in the manner provided in article 72 of the Rome Statute and this Part.[Cf. Rome Statute, article 72(1) and (4).]

153. Part 9 request involving national security

(1)If a request for assistance made under Part 9 of the Rome Statute appears to concern the production of any documents or disclosure of evidence that would, in the opinion of the Director of Public Prosecutions, prejudice Kenya’s national security interests, that request shall be dealt with in accordance with the process specified in sections 156 and 157.

(2)If, having followed the specified process the matter is not able to be resolved, the Director of Public Prosecutions may refuse the request or decline to authorise the production of the documents or giving of the evidence, as the case may be.[Cf. Rome Statute, articles 72(1), 93(4), 99(5)][Act No. 19 of 2023, Sch.]

154. Information or evidence involving national security

(1)Where a person who has been requested to give information or evidence—

(a)refuses to do so on the ground that disclosure would prejudice the national security interests of Kenya; or

(b)refers the matter to the Director of Public Prosecutions on the ground that disclosure would prejudice the national security interests of Kenya, the Director of Public Prosecutions shall determine whether or not he is of the opinion that the giving of information or evidence would prejudice Kenya’s national security interests.

(2)If the Director of Public Prosecutions confirms that he is of the opinion that disclosure would prejudice Kenya’s national security interests, the matter shall be dealt with in accordance with the process specified in sections 156 and 157.

(3)If, having following the specified process, the matter has not been resolved, the Director of Public Prosecutions may refuse the request or decline to authorise the provision of the information or giving of the evidence, as the case may be.[Cf. Rome Statute, articles 72(2), 93(4)][Act No. 19 of 2023, Sch.]

155. Other situations involving national security

(1)If, in any circumstances other than those specified in sections 153 and 154, the Director of Public Prosecutions is of the opinion that the disclosure of information or documents to the ICC would prejudice Kenya’s national security interests, the matter shall be dealt with in accordance with the process specified in sections 156 and 157.

(2)Without limiting subsection (1), this section shall apply if the Director of Public Prosecutions learns that information or documents are being, or are likely to be, disclosed at any stage of the proceedings, and intervenes in accordance with paragraph 4 of article 72 of the Rome Statute.

(3)If, having followed the specified process, the matter has not been resolved and the ICC has not made an order for disclosure under paragraph 7(b)(i) of article 72 of the Rome Statute, the Director of Public Prosecutions may refuse the request or decline to authorise the provision of the information or giving of the evidence, as the case may be.[Act No. 19 of 2023, Sch.]

156. Consultation with ICC required

The Director of Public Prosecutions shall consult with the ICC and, if appropriate, the defence, in accordance with paragraph 5 of article 72 of the Rome Statute.[Cf. Rome Statute, article 72(5)][Act No. 19 of 2023, Sch.]

157. Procedure where no resolution

(1)If, after consultation, the Director of Public Prosecutions considers that there are no means or conditions under which the information or documents or evidence could be provided or disclosed or given without prejudice to Kenya’s national security interests, he shall notify the ICC, in accordance with paragraph 6 of article 72 of the Rome Statute, of the specific reasons for his decision, unless a specific description of the reasons would result itself in prejudice to Kenya’s national security interests.

(2)The Director of Public Prosecutions shall use his best endeavours with a view to reaching a mutually satisfactory outcome if—

(a)the ICC determines that the evidence is relevant and necessary for the establishment of the guilt or innocence of the accused;

(b)the issue of disclosure arises in the circumstances specified in section 153 or 154 and the Director of Public Prosecutions is of the opinion that Kenya’s national security interests would be prejudiced by disclosure; and

(c)the ICC requests further consultations for the purpose of considering the representations, which may include hearings in camera and ex parte.

(3)The Director of Public Prosecutions shall comply with an ICC disclosure order if—

(a)the ICC determines that the evidence is relevant and necessary for the establishment of the guilt or innocence of the defendant;

(b)the issue of disclosure arises in the circumstances specified in section 155 (1); and

(c)the ICC orders disclosure in accordance with paragraph 7(b)(i) of article 72 of the Rome Statute.

[Cf. Rome Statute, articles 72(6) and (7), 93(4)][Act No. 19 of 2023, Sch.]

158. Director of Public Prosecutions to take into account ICC’s ability to refer matter to Security Council

In determining what action to take in relation to a matter to which this Part applies, the Director of Public Prosecutions shall take into account the power of the ICC to refer a matter to the Assembly of States Parties or to the Security Council in accordance with paragraph 7 of article 87 of the Rome Statute if the ICC considers that a requested State is not acting in accordance with its obligations under the Rome Statute.[Cf. Rome Statute, articles 72(7)(a)(ii), 87(7).][Act No. 19 of 2023, Sch.]

Information Provided by Third Parties

159. Disclosure of information provided by third party

(1)If the ICC requests the provision of a document or information that was provided or disclosed to Kenya in confidence by another State, intergovernmental organisation, or international organisation, the Director of Public Prosecutions shall seek the consent of the originator before providing that document or information to the ICC.

(2)If the originator is a State Party that consents to disclosure of the information or document, the Director of Public Prosecutions shall, subject to article 72 of the Rome Statute, provide that information or document to the ICC.

(3)If the originator is a State Party that undertakes to resolve the issue of disclosure with the ICC under article 73, the Director of Public Prosecutions shall inform the ICC of that undertaking.

(4)If the originator is not a State Party and refuses to consent to disclosure, the Director of Public Prosecutions shall inform the ICC that he is unable to provide the document or information because of an existing obligation of confidentiality to the originator.[Cf. Rome Statute, articles 72, 73][Act No. 19 of 2023, Sch.]

160. Request for Kenya’s consent to disclosure

(1)Where a request is received from another State for Kenya’s consent to the disclosure to the ICC of a document or information that had been disclosed to the State in confidence, the Director of Public Prosecutions shall either—

(a)consent to the disclosure; or

(b)undertake to resolve the matter with the ICC.

(2)The provision of an undertaking under subsection (1)(b) does not prevent the Director of Public Prosecutions from refusing the assistance sought in accordance with section 159(4).[Cf. Rome Statute, article 73][Act No. 19 of 2023, Sch.]

Part IX – INVESTIGATIONS OR SITTINGS OF ICC IN KENYA

161. Prosecutor may conduct investigations in Kenya

The Prosecutor may conduct investigations in Kenyan territory—

(a)in accordance with the provisions of Part 9 of the Rome Statute and as specified in section 23; or

(b)as authorised by the Pre-Trial Chamber under paragraph 3(d) of article 57 of the Rome Statute.

[Cf. Rome Statute, articles 54(3), 57(3)(d), 99(1) and (4).]

162. ICC sittings in Kenya

The ICC may sit in Kenya for the purpose of performing any of its functions under the Rome Statute and under the ICC Rules, including any of the following—

(a)taking evidence;

(b)conducting or continuing any proceedings;

(c)giving judgment in any proceedings;

(d)reviewing a sentence.

[Cf. Rome Statute, articles 3(3), 62.]

163. ICC’s powers while sitting in Kenya

While the ICC is sitting in Kenya, it may exercise its functions and powers as provided under the Rome Statute and under the ICC Rules.[Cf. Rome Statute, articles 4(2), 64.]

164. ICC may administer oaths in Kenya

The ICC may, at any sitting of the ICC in Kenya, administer an oath or affirmation giving an undertaking as to truthfulness in accordance with the practice and procedure of the ICC.[Cf. Rome Statute, article 69(1).]

165. Orders made by ICC not subject to review

No application for review under any provision of the enacted law, and no application for an order of mandamus or prohibition or certiorari or for a declaration or injunction may be brought in respect of any judgment or order or determination of the ICC that is made or given at a sitting of the ICC in Kenya.

166. Power to detain ICC prisoners in Kenya prisons if ICC holds sitting in Kenya

(1)A person in Kenya shall be kept in custody as the Cabinet Secretary directs in writing if—

(a)the ICC holds any sitting in Kenya; and

(b)the ICC requests that the person whose presence is required at the proceedings be held in custody as an ICC prisoner while the sitting continues in Kenya.

(2)A direction given under subsection (1) in respect of an ICC prisoner is sufficient authority for the detention of that prisoner in accordance with the terms of the direction.

(3)If an ICC prisoner is directed to be detained in a prison under subsection (1), the prisoner shall be treated in conformity with international human rights law and the Prisons Act (Cap. 90), so far as applicable and with all necessary modifications, shall apply with respect to that prisoner as if the prisoner had been remanded in custody or sentenced to imprisonment for an offence against the law of Kenya, as the case may require, and is liable to be detained in a prison under such an order or sentence.

(4)or the purposes of sections 122, 123 and 124 of the Penal Code (Cap. 63), (which relate to rescue or escape from lawful custody), an ICC prisoner who is in custody in a Kenyan prison or other detention facility shall be deemed to be in lawful custody while in Kenya.[Cf. Rome Statute, article 63.]

167. Removal of ICC prisoner

If the Cabinet Secretary is satisfied that the presence of an ICC prisoner who was the subject of a direction under section 166(1) is no longer necessary, sections 145 to 151 shall apply, with any necessary modifications, to that person.

Part X – REQUESTS TO ICC FOR ASSISTANCE

168. Director of Public Prosecutions or Cabinet Secretary may request assistance from ICC

The Director of Public Prosecutions or the Cabinet Secretary, as the case may be, may make a request to the ICC for assistance in accordance with this Part in an investigation into, or trial in respect of, conduct that may constitute a crime within the jurisdiction of the ICC or that constitutes a crime for which the maximum penalty under Kenyan law is a term of imprisonment of not less than five years.[Cf. Rome Statute, article 93(1)][Act No. 19 of 2023, Sch.]

169. Making of request

An urgent request for assistance may be made or transmitted to the ICC in the manner specified in section 22(1).[Cf. Rome Statute, article 96(4).]

170. Types of requests to ICC

A request may be made under this Part for any assistance that the ICC may lawfully give, including—

(a)the transmission of statements, documents, or other types of evidence obtained in the course of an investigation or a trial conducted by the ICC; and

(b)the questioning of any person detained by order of the ICC.

[Cf. Rome Statute, article 93 (10)(b)(i).]

Part XI – MISCELLANEOUS PROVISIONS AND CONSEQUENTIAL AMENDMENTS

Miscellaneous Provisions

171. Certificates given by Director of Public Prosecutions

(1)If the Director of Public Prosecutions receives a request for assistance from the ICC to which Part V relates, the Director of Public Prosecutions may give a certificate certifying all or any of the following facts—

(a)that a request for assistance has been made by the ICC;

(b)that the request meets the requirements of this Act;

(c)that the acceptance of the request has been duly made under and in accordance with this Act.

(2)In any proceedings under this Act, a certificate purporting to have been given under subsection (1) is, in the absence of proof to the contrary, sufficient evidence of the matters certified by the certificate.[Act No. 19 of 2023, Sch.]

172. Regulations

The Cabinet Secretary may make regulations, not inconsistent with this Act, for any of the following purposes—

(a)prescribing the procedure to be followed in dealing with requests made by the ICC, and providing for notification of the results of action taken in accordance with any such request;

(b)prescribing the procedures for obtaining evidence or producing documents or other articles in accordance with a request made by the ICC;

(c)providing for the payment of fees, travelling allowances and expenses to any person in Kenya who gives or provides evidence or assistance pursuant to a request made by the ICC;

(d)prescribing conditions for the protection of any property sent to the ICC pursuant to a request made under this Act, and making provision for the return of property in Kenya in accordance with a request;

(e)prescribing the forms of applications, notices, certificates, warrants, and other documents for the purposes of this Act, and requiring the use of such forms;

(f)providing for any other matters contemplated by this Act, necessary for its administration, or necessary for giving it full effect.

173. Regulations to implement Rules of Evidence and Procedure

Without limiting section 174, the Cabinet Secretary may make regulations to implement any obligation that is placed on State Parties by the ICC Rules if that obligation is not inconsistent with the provisions of this Act.

Consequential Amendments

174. [Spent]

Source: Kenya Law · Imported 4 October 2026