Detention during transit

Republic of Kenya

Kenya - International Crimes Act 2008 EN


Surrender and Temporary Surrender

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

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


Person in Transit

132. (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 police force, 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.

133. (1) If a transferee is not removed before or at the expiry of all periods of custody under section 132(2), the Minister 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 Minister first consults with the ICC; and
(b) it is not possible for the Minister and the ICC to reach agreement relating to the prompt removal of the transferee.
(3) The Minister shall not issue the certificate referred to in subsection (1) (b) unless the Minister is satisfied that, because of the special circumstances of the transferee, it would be inappropriate to make a removal order.

Rome Statute

Article 89 Surrender of persons to the Court


(c) A person being transported shall be detained in custody during the period of transit;