PART V—DOMESTIC PROCEDURES FOR OTHER TYPES OF CO-OPERATION

Finding Persons or Things, and Obtaining Evidence

76. (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 Attorney-General 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 Attorney-General gives authority for the request to proceed—
(a) the Attorney-General 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 Attorney-General of the outcome of those endeavours.


77. (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 Attorney-General shall give authority for the request to proceed if the Attorney-General is satisfied that—
(a) the request relates to an investigation being conducted by the Prosecutor or to any proceed¬ings 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.

78. (1) If the Attorney-General 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 Attorney-General.


79. (1) If the Attorney-General 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 Attorney-General together with a written statement certifying that they were pro¬duced to the Judge.

(3) Notwithstanding subsection (2), in the case of documents that are produced, the Judge may send to the Attorney-General copies of the documents certified by the Judge to be true copies instead of the originals.



80. (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 sub¬section (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 inves¬tigation 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. (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 pur¬poses 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. (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. (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. (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 Attorney-General 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 Attorney-General 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 Attorney-General of the outcome of those endeavours and, if relevant, deliver to him the record and any report of the quest¬ioning.

8 5. (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 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;
and
(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.

(3) If there is any inconsistency between subsection (2) and any other written law, subsection (2) shall prevail to the extent of the inconsistency.
(4) If the person seeks to have legal assistance assigned under subsection (2) (e) (ii), the Attorney-General shall cause such assistance to be provided.
(5) This section does not give any person a power to require another person to answer questions.

Service of Documents and Appearance of Witnesses

86. (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 Attorney-General may 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 Attorney-General 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 Attorney-General—

(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.

87. (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 Attorney-General 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 related

88. (1) If the Attorney-General gives authority for the request to facilitate the voluntary appearance of a witness to proceed, he shall forward the request to the appropriate 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 Attorney-General 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 Attorney-General;
(c) an assurance relating to such other matters as the Attorney-General thinks appropriate.

89. (1) The Attorney-General 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 Attorney-General 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.





Temporary Transfer of Prisoners

90. 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 Attorney-General 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.

91. (1) If the Attorney-General 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 Attorney-General 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 Attorney-General;
(b) that the prisoner will be returned to Kenya without delay in accordance with arrangements agreed to by the Attorney-General;
(c) assurances relating to such other matters as he thinks appropriate.

92. (1) The Attorney-General may authorise the temporary transfer of a Kenyan prisoner to the ICC if he 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 Attorney-General 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 police force;
(ii) a prison officer; or
(iii) a person authorised for the purpose by the ICC.

(3)A direction given by the Attorney-General 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, (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.


93. (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 Attorney-General—

(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.


94. (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 Attorney-General 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 Attorney-General 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 Attorney-General makes a request under subsection (1); and
(b) the Attorney-General is satisfied on such infor¬mation that he has that an accurate calculation can be made of the period referred to in paragraph (b) of subsection (1).

Evidence

95. (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 Attorney-General 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 Attorney-General 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 Attorney-General.

(3) This section does not confer on any person a power to enter a place or site.

96. (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 Attorney-General shall give authority for therequest 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 Attorney-General gives authority for the request to proceed, he may authorise a member of the police force, in writing, to apply to a Judge of the High Court for a search warrant under section 97.

97. (1) Where a Judge of the High Court, on an application in writing made on oath or affirmation by a member of the police force, 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 inter¬national crime has been, or is suspected of having been, committed; or
(b) any thing 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. A warrant issued under section 97 shall—
(a) be in the prescribed form;
(b) be directed to a member of the police force by name, or to any class of members of the police specified in the warrant, or generally to every member of the police force; and
(c) specify any conditions that the Judge has imposed under section 97 (3).

99. (1) Subject to any conditions specified in the warrant under section 98, a warrant issued under section 97 authorises the member of the police force 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 circum¬stances 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 police force executing a warrant issued under section 97 has the powers described in paragraphs (c) and (d) of sub¬section (1).



100. (1) A member of the police force 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 sir months or to a fine, or both.

101. Every member of the police force executing any
(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. (1) Every member of the police force 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 police force 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 Attorney-General, without delay.

(3) If the warrant is not able to be executed, a report explaining the reasons for this shall be sent to the Attorney-General without delay.

103. (1) If a member of the police force seizes a thing under a warrant issued under section 97, it shall be delivered into the custody and control of—
(a) the Commissioner of Police; or
(b) a commissioned officer of police designated by
the Commissioner to receive things seized under
this Act.
(2) The Commissioner of Police or designated officer shall—

(a) inform the Attorney-General, 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 Attorney-General's direction under subsection (3) about how to deal with it; and
(c) comply with any direction that the Attorney-General gives him.
(3) The Attorney-General may, by written notice, give the Commissioner 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 Attorney-General shall direct the Commis¬sioner 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 Attorney-General before the expiry of three months from the day on which the thing was seized.

(5) Notwithstanding subsection (4), the Attorney-
General 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.

104. (1) Where the ICC makes a request underparagraph 1 (i) of article 93 of the Rome Statute for theprovision of records and documents, including official records and documents, the Attorney-General 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 Attorney-General 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 Attorney-General.

(3) This section does not confer on any person power to require the production of a document or record.


105. (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
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 Attorney-General 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 Attorney-General 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 circum¬stances; and
(iii) deliver the report to the Attorney-General.

Identifying, Freezing or Seizing Property associated with International Crimes

106. Where the ICC requests assistance underparagraph 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 Attorney-
General 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.

107. If the Attorney-General 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.

Other Types of Assistance

108. (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 Attorney-General 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 Attorney-General gives authority for the request to proceed—
(a) he shall—
(i) take such steps as the Attorney-General 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 Attorney-General.

(3) If the Attorney-General 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.