International Crimes Act

This Act may be cited as the International Crimes Act.

Provides interpretive rules clarifying that references to ICC requests for assistance include requests for co-operation, and that references to ICC-imposed sentences include extended sentences and sentences for non-payment of fines.

This Act is binding on the Government.

The Rome Statute is given force of law in Kenya and specific subject-matter areas of the Statute apply, including requests between the ICC and Kenya, ICC investigations and proceedings, enforcement of ICC sentences in Kenya, and multiple Parts and articles relating to jurisdiction, procedure, trials, penalties, appeals, cooperation, and enforcement.

Where the Rome Statute or ICC Rules give a State a power, duty or function, and this Act does not provide otherwise, the Director of Public Prosecutions may exercise or carry out that power, duty or function on behalf of the Government of Kenya.

It is an offence for a person to wilfully obstruct, pervert or defeat the course of justice of the ICC; on conviction the person may be imprisoned for a term of not more than five years. The provision also treats dissuading witnesses by threats, bribes or other corrupt means and accepting or attempting to obtain bribes to abstain from giving evidence as obstructing justice.

It is an offence to resist or willfully obstruct an ICC official or someone assisting them; conviction can lead to imprisonment for up to two years.

A person who, with intent to mislead, knowingly makes a false statement under oath or solemn affirmation before an ICC judge or authorized official is guilty of perjury and liable on conviction to up to seven years' imprisonment.

A person who, as a witness in proceedings of the ICC, gives evidence that later contradicts their earlier evidence with intent to mislead is guilty of an offence and on conviction may be imprisoned for up to two years; immaterial evidence is excluded.

It is an offence for any person to fabricate anything with intent to mislead so that it is used as evidence in ICC proceedings; conviction can lead to up to seven years' imprisonment.

It is an offence to sign a document that claims to be an affidavit or statutory declaration sworn or declared before a person when it was not actually sworn or declared before that person, or when the signer knows that the person had no authority to administer the oath or declaration.

Defines intimidation as conduct intended to compel a person to abstain from doing something they have a lawful right to do.

It is an offence for a person to retaliate against someone (or their family) for giving testimony before the ICC; conviction may lead to up to five years' imprisonment.

Kenya has jurisdiction to try alleged offences under sections 9 to 17 when (a) the act or omission is alleged to have been committed in Kenya or on board a Kenya-registered aircraft or vessel; or (b) the person was a Kenyan citizen or employed by Kenya at the time of the alleged offence; or (c) the person is, after the offence, present in Kenya. A trial authorised by this section may be conducted in any court of competent jurisdiction.

Section 19(2) permits the Cabinet Secretary or the Director of Public Prosecutions to refuse a surrender or assistance request relating to administration-of-justice offences where they consider exceptional circumstances would make surrender or assistance unjust or oppressive; Section 19(3) requires that the Cabinet Secretary or the Director of Public Prosecutions give the reasons for that opinion.

Section 6 makes genocide, crimes against humanity and war crimes offences, and criminalises conspiracy, attempts, accessory-after-the-fact and counselling in relation to those offences; penalties include being punished as for murder where the offence involves intentional killing, or life imprisonment or a lesser term in other cases.

Persons charged may rely on any justification, excuse, or defence available under Kenyan law or international law; references to the ICC and the Rome Statute are to be read as references to the Kenyan court and to this Act respectively.

Kenya may assert jurisdiction to try offences under section 6 where specified territorial or personal connections exist, and trials under this section conducted in Kenya must be held in the High Court.

Bribery of judges and officials is an offence punishable on conviction by imprisonment for a term of not more than fourteen years.

Section 20 allows the ICC to request specific forms of assistance (such as arrest and surrender, taking and production of evidence, searches and seizures, and preservation of evidence) to facilitate ICC investigations and prosecutions.

Requests for assistance must be made through authorised channels and transmitted to specified authorities (Cabinet Secretary or Director of Public Prosecutions or their authorised person); subsection (2) specifies diplomatic or other appropriate channels; section is subject to section 22.

If a request is first made or transmitted by the means in subsection (1), it must be followed as soon as practicable by a formal request transmitted in the manner specified in section 21.

When the International Criminal Court makes a request for assistance that specifies a particular manner or procedure not prohibited by Kenyan law, the Director of Public Prosecutions or the Cabinet Secretary must use their best endeavours to ensure the request is executed in that manner or by that procedure.

The Director of Public Prosecutions may agree to transmit documents or information to the Prosecutor confidentially (provided the Prosecutor uses them only to generate new evidence), and may later consent to their disclosure for use as evidence under Parts 5 and 6 of the Rome Statute and ICC Rules.

Kenyan authorities who handle a request for assistance must keep the request and supporting documents confidential unless disclosure is necessary to execute the request; they must also use their best endeavours to protect victims and witnesses when the ICC asks for special handling.

The Director of Public Prosecutions or the Cabinet Secretary must notify the ICC without delay of their response to a request for assistance and of the outcome of any action taken; if they refuse or postpone assistance they must state the reasons in the notice.

Official capacity of person no bar to request.

This Part sets out how to handle requests under the Rome Statute for arrest and surrender, including arrest where a surrender request is received, provisional arrest in urgent cases, remand and bail, eligibility for surrender, and surrender and temporary surrender.

The Cabinet Secretary must notify a High Court Judge in writing when a surrender request (other than a provisional arrest request) is received and, if satisfied the request meets article 91 requirements, request that the Judge issue an arrest warrant; the Cabinet Secretary must also send the Judge a copy of the request and supporting documents.

The Judge must give reasons when issuing or refusing to issue a warrant under subsection (1).

The Cabinet Secretary may apply to the High Court at any time to cancel a warrant; if the High Court orders cancellation the warrant ceases to have effect and any person arrested under it shall be released unless otherwise liable to custody.

A provisional arrest warrant may be issued under this section when: (a) the ICC has issued a warrant for arrest or a conviction for an international crime has been given; (b) the person named is or is suspected of being in Kenya or may come to Kenya; and (c) it is necessary or desirable that an arrest warrant be issued urgently. A warrant may be issued even if no request for surrender has been made or received from the ICC.

When a judge issues a provisional arrest warrant, the applicant must report the warrant to the Cabinet Secretary without delay and must include the ICC warrant or conviction judgment and other documentary evidence produced to the Judge in that report.

If the High Court does not receive the Cabinet Secretary's notice in time and does not extend the time, the High Court must discharge the person; the High Court may extend any time fixed under subsection (1)(c).

A person arrested on a warrant under sections 30 or 32 must be brought before the High Court as soon as possible; the person is not entitled to bail as of right; if remanded on bail the Court may impose conditions; the High Court, when deciding bail, must not inquire into the propriety of any ICC warrant or judgment.

When a bail application is made, the Cabinet Secretary must notify the ICC; the ICC may make recommendations; the High Court must consider any ICC recommendations before deciding; if bail is granted the Cabinet Secretary must provide periodic reports to the ICC if requested.

In proceedings under this Part, the High Court must have the same jurisdiction and powers and must conduct the proceedings in the same manner as if the person were charged with an offence committed within Kenyan jurisdiction, except where this Act or its regulations expressly provide otherwise.

Section applies when the High Court orders detention; the High Court may detain the person at their current location or at another place it considers appropriate (having regard to risk or reason), may detain in prison when specified conditions are met, and must have regard to any ICC recommendations about the place of detention.

When a person is brought before the High Court under this Part, the Court must determine whether the person is eligible for surrender for the international crime(s) for which surrender is sought; eligibility is subject to sections 34 and 41, certain evidential presumptions apply, subsection (3)(c) and (3)(d) only apply if the person puts the matter at issue, and the person may be not eligible if a mandatory restriction in section 51(1) applies.

The High Court may adjourn a hearing when documents with deficiencies relevant to the proceedings are produced and the Court considers those deficiencies to be of a minor character; subsection (2) states that subsection (1) does not limit other circumstances in which the High Court may adjourn a hearing.

Persons may notify the High Court or the Cabinet Secretary that they consent to surrender to the ICC; the Cabinet Secretary may make a surrender order as if a request had been received.

If the High Court is not satisfied that a person is eligible for surrender it must discharge the person; the person has rights to apply for habeas corpus and to appeal; if the High Court issues a warrant the Court may grant bail.

The Cabinet Secretary must decide whether to order surrender and give reasons for any refusal; may arrange pre-surrender approvals; and must ensure delivery to the ICC once a surrender order is made; certain rights to habeas corpus and appeals are preserved.

If the Cabinet Secretary determines under section 43 that a surrender order is otherwise appropriate but the person is detained under a Kenyan sentence, the Cabinet Secretary may, after consulting the ICC and instead of immediate or temporary surrender, order surrender to take effect when the person is no longer liable to be detained.

The Cabinet Secretary may make a temporary surrender order for a person to the ICC.

The Cabinet Secretary must review whether a person surrendered temporarily to the ICC who is convicted and imprisoned should be returned to Kenya in line with ICC undertakings; the Cabinet Secretary may decide the undertaking need not be complied with and, if so, must inform the ICC without delay.

The ICC may request that a person temporarily surrendered to Kenya be returned to the ICC to serve their sentence, and the Cabinet Secretary must determine (in accordance with section 43) that the person is to be surrendered before an order under subsection (1) can be made.

If a person serving a Kenyan prison sentence is released under a surrender or temporary surrender order to the ICC, the Kenyan sentence continues to run while the person is in custody in connection with the request, subject to subsection (3).

A surrender order must specify all the international crimes in relation to which the person is being surrendered.

When the ICC directs under article 111 that an escaped convicted person be delivered to a State, the Cabinet Secretary must arrange for the person to be delivered to the State specified in the ICC's direction.

Lists the only grounds on which surrender to the ICC may be refused, enumerating specific subparagraphs for previous proceedings, inadmissibility, competing requests, and references to other sections and Acts.

The Cabinet Secretary may postpone or may decline to postpone execution of an ICC surrender request; postponements can be for a reasonable time and extended; if no decision is made within six months after the Minister’s postponement decision, the person may apply to a High Court judge to be discharged, and a judge may discharge orders and release the person if not liable to other detention.

When specified prior proceedings rules apply, the Cabinet Secretary must immediately consult the ICC about admissibility; if an ICC admissibility ruling is pending the Cabinet Secretary may postpone executing a surrender request until the ICC decides.

Section 54 lets execution of a surrender request either proceed or be postponed while Kenyan investigation or proceedings continue; it also preserves section 44 which allows the Cabinet Secretary, after consulting the ICC, to make a later-effecting surrender order when a person is serving a sentence for a different Kenyan offence.

If Kenya is investigating or prosecuting the same conduct, the Cabinet Secretary may postpone execution of an ICC surrender request until the ICC decides admissibility; if the ICC finds the case inadmissible, surrender is refused; if admissible and no other ground exists, the request continues to be dealt with under this Part.

The Cabinet Secretary may postpone executing a request under this Part while the ICC decides certain admissibility challenges under articles 18 or 19.

Section requires notification to the ICC and the requesting State.

Where there is a competing request from a State Party, the ICC may make a determination under article 18 or 19 about admissibility (including after receiving notification of the competing request); steps under the Extradition Acts may continue, and no person may be surrendered under the relevant Act until the ICC decides on admissibility and that the case is inadmissible.

Where there is a competing request from a non‑State party, 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 Cabinet Secretary must decide whether to surrender the person to the ICC or extradite to the requesting State.

When both the ICC and one or more States request the same person for different conduct, the Cabinet Secretary must decide whether to surrender the person to the ICC or to the requesting State; if Kenya has an existing international obligation to extradite, the Cabinet Secretary must determine whether to surrender or extradite, and when deciding must consider relevant factors including section 59 and give special weight to the relative seriousness of the offences.

If the ICC finds a case inadmissible and the Cabinet Secretary then refuses extradition under the named Extradition Acts, the Cabinet Secretary must notify the ICC of that decision.

The Cabinet Secretary may postpone a request for surrender until the ICC advises whether it intends to proceed when (a) the ICC makes a request for surrender; (b) the ICC has not previously made a final determination on whether article 98 applies to that request; and (c) a request is made to the ICC to determine whether article 98 applies to the request for surrender.

A party who considers a High Court determination under section 39 to be erroneous in law may appeal to the Court of Appeal on a question of law only; to lodge an appeal the party must file a notice of appeal in the prescribed form in the office of the court that made the determination within fifteen days after the determination.

Describes actions related to custody pending appeal: after the High Court determines under section 39, either party may inform the Court of an intention to appeal or file a notice of appeal; detention under orders or warrants under this section is treated as if appeal proceedings were under section 39 for eligibility for surrender.

There is a right to make an application for a writ of habeas corpus within fifteen days after the issue of a warrant of detention.

The court on appeal has powers to reverse, confirm or amend determinations; remit determinations to the High Court (with its opinion or with directions to rehear eligibility proceedings); make any other order it thinks fit; shall not regard evidence not before the High Court when the determination was made; and may hear habeas corpus applications in the same proceedings.

Section 67 sets out what the appellate court may do on appeal about eligibility for surrender: discharge the person; remit the determination to the High Court for rehearing; in case of an error of law, decline to reverse if no substantial wrong occurred; exercise High Court powers under section 42; or if remitting, issue a warrant for arrest and detention pending reconsideration.

If the Cabinet Secretary decides under section 43 that a person is not to be surrendered, the person must be discharged from custody immediately unless subject to another detention order.

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

A person may apply to a Judge of the High Court to be discharged if an order under section 47 has been made and the person is not surrendered and conveyed out of Kenya within two months after ceasing to be liable to detention under a Kenyan sentence.

A person's discharge under this Part does not stop further legal proceedings against them.

When someone is arrested on a warrant under this Part, a member of the National Police Service may search them and seize items that may be evidence; the member must report seized items to the Cabinet Secretary, who must then report the seizure to the ICC.

The Cabinet Secretary may direct that items seized under section 72 which may be evidence be delivered to the ICC on surrender, delivered if the person cannot be surrendered, or returned to the person if discharged; the Cabinet Secretary may refuse delivery if the item is needed for investigation in Kenya or is subject to dispute or unlawful possession.

Prison officials must record time spent in custody for persons detained pending surrender to the ICC; the Cabinet Secretary must provide a certificate with that information to the ICC at surrender or as soon as possible after.

The Cabinet Secretary may consent to someone surrendered to the ICC being proceeded against, punished, or detained for prior conduct (not the conduct forming the basis of surrender), may relate that consent to surrender to another State, and may request information or assurances from the ICC.

The Prosecutor may conduct investigations in Kenya.

Section 162: ICC sittings in Kenya; Section taking evidence.

While in Kenya, the ICC may exercise its functions and powers under the Rome Statute and the ICC Rules.

The ICC may administer an oath or affirmation at any sitting in Kenya.

No application for review, or for an order of mandamus, prohibition or certiorari, or for a declaration or injunction may be brought in respect of any judgment, order or determination of the ICC made at a sitting of the ICC in Kenya.

Permits ICC prisoners to be detained in Kenyan prisons when the ICC holds sittings in Kenya and requests that the person be held in custody.

If the Cabinet Secretary is satisfied that an ICC prisoner (who was the subject of a direction under section 166(1)) is no longer necessary, then sections 145 to 151 apply to that person.

Members of the National Police Service may stop vehicles (not airborne aircraft) to exercise a search power under a warrant issued under section 97; persons who fail to stop when required are guilty of an offence punishable by imprisonment up to six months or a fine, or both.

A person executing a warrant must have that warrant with him.

If a warrant is executed, a report on the execution and a copy of any notice given must be sent to the Director of Public Prosecutions without delay; if the warrant cannot be executed, a report explaining the reasons must be sent to the Director of Public Prosecutions without delay.

When things are seized, the Inspector-General of Police or a commissioned officer designated by the Inspector-General must inform the Director of Public Prosecutions without delay, retain the thing for up to three months pending the DPP's direction, and comply with any direction the DPP gives; the DPP may require the thing to be sent to the ICC or dealt with otherwise; disposal is prevented where specified exceptions apply.

If a request concerns an ICC investigation or proceedings and the document or record may be in Kenya, the named actor must forward the request to the appropriate Kenyan agency; that actor or agency must use its best endeavours to locate and make available the document, report on those endeavours, and deliver the document to the Director of Public Prosecutions if located. The section also states that no person has power to require production of a document or record.

Section 105 describes assistance to the ICC in protecting victims and witnesses and preserving evidence, conditions for requests (relating to ICC investigations/proceedings and not being prohibited by Kenyan law), and obligations to take steps, forward requests, use best endeavours, report on endeavours, and deliver the report to the Director of Public Prosecutions.

A request concerns property connected to an international crime that is under investigation by the Prosecutor or is the subject of proceedings before the ICC.

The Director of Public Prosecutions is permitted to authorise measures.

The Director of Public Prosecutions must take steps deemed appropriate in a case and must forward a request to the appropriate Kenyan agency.

Assistance may be refused in the situations listed: when the ICC does not accept suggested conditions for implementing the request; when the ICC determines the case is inadmissible; or when section 115(4) applies.

The Director of Public Prosecutions may choose not to postpone execution of a request even when postponement grounds apply; if the Director does postpone, the postponement may be for a reasonable time and may be extended.

Consider whether the assistance can be provided in another manner or subject to conditions.

The Director of Public Prosecutions may postpone executing an ICC assistance request if immediate execution would interfere with an ongoing investigation or prosecution of a different case.

If the International Criminal Court (ICC) is considering admissibility under articles 18 or 19 for a case related to a request, the Director of Public Prosecutions may postpone executing the request until the ICC decides, except that if the ICC has ordered evidence collection the Director may not postpone and must deal with the request under this Part; if the ICC finds the case inadmissible the request must be refused, and if admissible and no other ground exists the request continues under this Part.

When the Director of Public Prosecutions receives competing requests for assistance from the ICC and another State, he must, after consulting both, try to satisfy both requests.

If an ICC assistance request concerns persons, information or property under the control of another State or an international organisation, the Director of Public Prosecutions must inform the ICC so it can direct its request to that other State or international organisation.

Before sending a formal response to the ICC, the Director of Public Prosecutions may refuse an ICC request for assistance or postpone its execution on grounds in sections 109 or 110, even if authority to proceed was previously given.

A request made by the ICC under Part 9 of the Rome Statute to assist a defendant in preparing his defence shall be dealt with in the same manner as a like request to assist the Prosecutor.

The Prosecutor may execute non-compulsory requests under article 99(4) of the Rome Statute; the Director of Public Prosecutions must consult the ICC without delay if difficulties arise concerning requests under article 99(4)(b).

The Director of Public Prosecutions must forward requests from the ICC Prosecutor to the appropriate Kenyan agency and use best endeavours to locate or identify and locate the person or thing to which the request relates, and advise on the outcome.

Allows assistance to gather evidence in Kenya and to produce documents or other articles in Kenya where the request relates to an investigation by the Prosecutor or proceedings before the ICC and there are reasonable grounds to believe the evidence or documents can be obtained in Kenya.

When the Director of Public Prosecutions authorises a request to take evidence, a Judge of the High Court must take each witness's statement in writing on oath or affirmation.

A Judge of the High Court may order production of documents when the Director of Public Prosecutions authorises the request; if produced the Judge must send them to the Director with a written certificate, or may send certified copies instead of originals.

Section 80 specifies that the applicable law for compelling persons under sections 78 and 79 is Kenyan law (as in subsection 2); persons connected to ICC investigations are competent but not compellable to give evidence; and such persons are not required to provide evidence or documents they could not be compelled to provide in the ICC or Prosecutor's investigation.

The ICC may give an evidence certificate.

Certain persons may appear: (a) the person to whom the ICC proceedings or the Prosecutor's investigation relates; (b) any other person giving evidence or producing documents at the hearing; (c) a representative of the Prosecutor or the ICC.

The Chief Justice may authorise the Registrar of the High Court to exercise a Judge's powers in a particular case; the Chief Justice may revoke such authorisation at any time; and nothing prevents any Judge from exercising powers conferred on a Registrar under this section.

When a request relates to an ICC investigation or proceedings and the person may be in Kenya, the named actor must forward the request to the appropriate Kenyan agency, use its best endeavours to carry out the ICC's requested questioning, ensure answers are recorded in writing and make any appropriate reports, and advise the Director of Public Prosecutions of the outcome and deliver records if relevant.

The Director of Public Prosecutions must provide legal assistance if a person seeks assigned assistance under subsection (2)(e)(ii); and no person has power to require another to answer questions.

Assistance in arranging service of documents for investigations by the Prosecutor or proceedings before the ICC where the person or body to be served is or may be in Kenya; service to follow any procedure specified in the request or, if unlawful/inappropriate or unspecified, Kenyan law; require a certificate of service if served or a statement of reasons if not served; includes summonses to witnesses and to an accused under article 58(7) of the Rome Statute.

Requests for the voluntary appearance of a witness are limited to when (a) the request relates to an investigation by the Prosecutor or proceedings before the ICC, (b) the witness’s attendance is sought to give evidence or information relating to that investigation or proceedings, and (c) the witness is or may be in Kenya.

If the Director of Public Prosecutions authorises a request to facilitate a witness's voluntary appearance, the Director must forward that request to an appropriate Kenyan agency; that agency must inquire whether the prospective witness consents to give evidence or assist the ICC; subsection (3) lists assurances that may be given concerning prosecution, return to Kenya, and other matters.

The Director of Public Prosecutions may facilitate the appearance of a prospective witness before the ICC and may take actions including approving and arranging travel, varying release or sentence conditions, or other actions as appropriate, subject to consent of the witness and appropriate assurances from the ICC.

A request for temporary transfer of a prisoner relates to an investigation being conducted by the Prosecutor or any proceedings before the ICC.

The Director of Public Prosecutions must forward a request to the appropriate Kenyan agency if he authorises a temporary transfer of a Kenyan prisoner; the receiving agency must inquire whether the prisoner will consent to the transfer.

The Director of Public Prosecutions may arrange for the transfer of a prisoner to the ICC, subject to consent and any necessary assurances; the Director may direct the prison release and accompaniment by specified officers; persons released remain in lawful custody while in Kenya.

When a prisoner charged with or convicted of a Kenyan offence is transferred to the ICC, time spent in custody outside Kenya in connection with the request before sentence is imposed is dealt with under section 94 and such time may be treated as custody for the purposes of the Kenyan sentence, which shall continue to run.

Request for information about time spent in custody overseas: the Director of Public Prosecutions must advise the ICC of the sentencing date and request a certificate recording the total period detained outside Kenya.

The Director of Public Prosecutions must authorise ICC requests to examine places or sites in Kenya if satisfied the request relates to an ICC investigation or proceedings, and must forward such requests to the appropriate Kenyan agency.

The Director of Public Prosecutions may authorise, in writing, a National Police Service member to apply to a High Court Judge for a search warrant under section 97.

A Judge must issue a warrant for listed things connected to an international crime; a Judge must not issue a warrant unless provided with required information; a Judge may impose conditions on a warrant.

A search warrant must be in the prescribed form.

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

Requires referral of ICC victim reparation requests to an appropriate Kenyan agency and requires that agency to report the results without delay to the Director of Public Prosecutions; preserves other assistance to the ICC.

Sets out how fines under article 77 of the Rome Statute are to be enforced in Kenya, including ordering payment, requesting enforcement under article 109, referral to an appropriate Kenyan agency, enforcing the order as if it were a Penal Code fine, reporting results to the Director of Public Prosecutions, disposal of recovered fines as specified by the ICC order, and that this section does not limit other assistance to the ICC.

If the ICC makes an order under paragraph 2(b) of article 77 of the Rome Statute for forfeiture and requests assistance under paragraph 1 of article 109 to enforce that forfeiture order.

The Director of Public Prosecutions may apply to the High Court to register a forfeiture order or an amendment; the Court must register the order or amendment under section 123 if it is satisfied the order or amendment is in force.

Sets how copies of ICC orders or amendments must be registered and the effect and limited duration of registration by facsimile.

The Court must give notice of the registration to persons it believes may have an interest in the property, in the manner and within the time the Court considers appropriate, excluding anyone convicted of the offence to which the order relates.

Section 125 vests property specified in a forfeiture order in the Republic, allows the Republic to take possession if not already possessed, restricts disposal before the "relevant time" except with High Court leave and directions, and requires disposal in accordance with High Court directions with proceeds dealt with under section 130.

A forfeiture order may be treated as a pecuniary penalty (a fine) for enforcement and valuation is either the value specified by the ICC or, if unspecified, the value as assessed by the Director of Public Prosecutions.

Third parties who claim an interest in property subject to a registered forfeiture order may apply to the High Court for relief, subject to eligibility limits, leave requirements in some cases, time limits (two months from registration) with possible discretionary extension, service on the Director of Public Prosecutions, and supremacy of contrary Rome Statute or ICC Rules provisions.

The Court may grant relief to a third party in respect of an interest in property — including declaring the interest, ordering its transfer, or ordering payment equal to its value — if a person applies and the Court is satisfied the claim is valid; relief may be refused if the applicant was involved in the offence or did not acquire the interest in good faith and for value.

The Director of Public Prosecutions may apply to the High Court to cancel the registration of a forfeiture order, and if the DPP applies the Court shall cancel the registration.

Money or property recovered under this Part must be transferred to the ICC.

Allows a transferee to be transported through Kenya for surrender or transfer to the ICC or another State; limits Cabinet Secretary refusal except if transit would impede or delay surrender/transfer; no transit authorisation needed for air transport with no landing; Cabinet Secretary may require a request after unscheduled landings.

During transit the transferee must be detained in custody; the person holding the transferee before landing may hold them up to ninety-six hours; a High Court may order further custody periods on application by a National Police Service member.

The Cabinet Secretary must either make a removal order under section 148 or issue a certificate under section 145 to give the transferee temporary authority to remain in Kenya; but must not issue that certificate unless satisfied that, because of the transferee's special circumstances, a removal order would be inappropriate.

The Cabinet Secretary may inform the ICC that Kenya will allow ICC prisoners to serve ICC-imposed sentences in Kenya, subject to conditions, and may later advise withdrawal of that willingness.

Lists conditions and authorities relevant to a request that an ICC-imposed sentence be served in Kenya.

ICC prisoners arriving in or already in Kenya when sentenced are to be detained under the Prisons Act as if sentenced under Kenyan law; the prisoner has a right to confidential communication with the ICC; an ICC judge or staff member may visit the prisoner to hear representations without others present except the prisoner's representative.

An order for detention acts as the authority for detention until the ICC prisoner completes the sentence, is released, or is transferred to another country.

A sentence of imprisonment imposed by the ICC that is served in Kenya must be administered in accordance with the Rome Statute and the ICC Rules; where there is any inconsistency between the Penal Code or the Prisons Act and the Rome Statute and ICC Rules, the latter prevail.

The prisoner has an entitlement to appear before the ICC at the review of the prisoner’s sentence; the ICC may request the prisoner or the interests of justice may require attendance. The provision names national officials and persons who may be involved in transfer or escort.

The Cabinet Secretary must direct transfer of an ICC prisoner to the ICC when the prisoner is to give evidence in another case; the Cabinet Secretary may direct transfer for other reasons if satisfied it is in the interests of justice. The section does not apply where section 90(1) applies.

Transfer of prisoner to another State to complete sentence.

The Cabinet Secretary must either make a removal order under section 148 or issue a certificate under section 145 granting temporary authority to remain in Kenya, subject to conditions in subsection (2) and section 143.

Persons covered by subsection (1)(a) may not be extradited to another country without the ICC's prior agreement; persons covered by subsection (1)(b) or (1)(c) may not be required to serve sentences in Kenya or to undergo trial for acts before the ICC designation without the ICC's prior agreement.

If an ICC prisoner serving a sentence in Kenya escapes and is located in another State, the Cabinet Secretary may request that State to extradite the prisoner under the Extradition Acts; likewise, requests to Kenya for escaped ICC prisoners located in Kenya are to be treated as extradition requests under the relevant Extradition Acts.

A certificate can allow a named person to remain in Kenya; the Cabinet Secretary may issue or renew such a certificate (periods limited to three months), may order custody if he thinks fit, and may refer the case to the immigration Cabinet Secretary under section 40; while in force the certificate suffices to permit residence and exempts the person from the Kenya Citizenship and Immigration Act except as subsection (3) provides.

The Cabinet Secretary responsible for immigration declines to grant a permit under the Kenya Citizenship and Immigration Act ( Cap. 170 ).

A certificate under section 145 authorises a member of the National Police Service to arrest and take into custody the person; a Judge may issue a detention warrant if satisfied the person is likely to abscond or may order release subject to conditions.

Section 148 authorises and prescribes how a removal order operates: it can require release into or custody by a member of the National Police Service; can authorise police to take a person into custody; must specify the person is to be taken by National Police Service and placed on board a craft for removal; may authorise detention while awaiting removal; removal orders must be served by personal service; removal may occur from prisons, other detention places, seaports or airports; and the order continues in force until executed or cancelled.

If a person cannot be conveyed out of Kenya within 48 hours after service of a removal order, the person must be brought before a High Court Judge, who must either issue a warrant for detention if satisfied the person is likely to abscond or order release subject to conditions; a detention warrant may authorise detention in places specified in section 148(3).

A person to whom this Part applies is exempt from holding a permit under the Kenya Citizenship and Immigration Act while they are in Kenya in accordance with this Part.

This provision states that nothing in this Part authorises making a removal order in respect of a Kenyan citizen.

If a national security issue arises in ICC proceedings, it must be handled in the way set out in article 72 of the Rome Statute and this Part.

If a Part 9 request appears to threaten national security, the Director of Public Prosecutions may refuse the request or decline to authorise production of documents or evidence after the specified process if the matter cannot be resolved.

When a person refuses or refers a request on national security grounds, the Director of Public Prosecutions must decide whether disclosure would prejudice Kenya’s national security; if after the specified process the matter is unresolved, the Director may refuse the request or decline to authorise disclosure.

If the Director of Public Prosecutions believes disclosure to the ICC would prejudice Kenya's national security, the Director may, after following the specified process, refuse the request or decline to authorise provision of the information or giving of evidence; the section also applies where the Director learns information is likely to be disclosed and intervenes under paragraph 4 of article 72 of the Rome Statute.

The Director of Public Prosecutions must consult with the ICC and, if appropriate, the defence, in accordance with paragraph 5 of article 72 of the Rome Statute.

If, after consultation, the Director of Public Prosecutions concludes that disclosure would prejudice Kenya’s national security interests, he must notify the ICC of the specific reasons unless providing those reasons would itself prejudice national security.

The Director of Public Prosecutions must take into account the ICC’s ability to refer the matter to the Security Council.

The Director of Public Prosecutions must seek the originator's consent before giving to the ICC any document or information provided to Kenya in confidence by another State, intergovernmental organisation, or international organisation; if the originator is a consenting State Party the DPP shall provide the material (subject to article 72); if the State Party undertakes to resolve disclosure under article 73 the DPP shall inform the ICC of that undertaking; if the originator is a non‑State Party and refuses, the DPP shall inform the ICC that he is unable to provide the material because of confidentiality.

The Director of Public Prosecutions may refuse the assistance sought in accordance with section 159(4), even where an undertaking under section 160(1)(b) has been provided.

The Director of Public Prosecutions or the Cabinet Secretary may request assistance from the ICC for investigations or trials into conduct that may fall under the ICC or carries a Kenyan maximum sentence of at least five years.

An urgent request for assistance may be made or transmitted to the ICC in the manner specified in section 22(1).

Types of requests to the ICC include the transmission of statements, documents, or other types of evidence obtained in the course of an investigation or a trial conducted by the ICC.

The Director of Public Prosecutions may give certificates stating (a) that a request for assistance has been made by the ICC, (b) that the request meets the Act's requirements, and (c) that acceptance of the request has been duly made; such a certificate is, in proceedings and absent proof to the contrary, sufficient evidence of the matters certified.

Prescribes the procedure for responding to requests made by the ICC and for notifying results of action taken in response to such requests.

Regulations to implement Rules of Evidence and Procedure