PART I—PRELIMINARY

Offences Against Administration of Justice

19. (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;

PART III—GENERAL PROVISIONS RELATING TO REQUESTS FOR ASSISTANCE

20. (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

PART IV—ARREST AND SURRENDER OF PERSONS TO ICC

28. (1) This Part shall apply to a request made by theICC under paragraph 1 of article 89 of the Rome Statutefor 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.

PART IV—ARREST AND SURRENDER OF PERSONS TO ICC

28.

(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).

PART IV—ARREST AND SURRENDER OF PERSONS TO ICC

Restrictions on Surrender

52. (1) The Minister 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 Minister may decide not to postpone the execution of the request; and, in that event, the Minister 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 Minister postpones the execution of the request, the postponement may be for a reasonable time and may, if the Minister considers it desirable, be extended from time to time.
(4) A decision by the Minister 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 Minister, 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.

PART IV—ARREST AND SURRENDER OF PERSONS TO ICC

Restrictions on Surrender

54. (1) Where the ICC makes a request for surrender that would interfere with any investigation or proceedings in Kenya involving different conduct, the Minister 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;

PART IV—ARREST AND SURRENDER OF PERSONS TO ICC

Restrictions on Surrender


62. (1) Where—
(a) the ICC makes a request for surrender;
(b) the ICC has not previously made a final deter¬mination 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 Minister 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.