PART I—PRELIMINARY
Interpretation
2 (2) In this Act—
(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
PART I—PRELIMINARY
Rome Statute to have force of law
4. (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;
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—
(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.
PART III—GENERAL PROVISIONS RELATING TO REQUESTS FOR ASSISTANCE
21. (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 Minister; or
(b) in any other case, be transmitted to the Attorney-General or a person authorised by the Attorney-General to receive requests.
(2) In this section, "authorised channel" means—
(a) the diplomatic channel to the Minister 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.
PART III—GENERAL PROVISIONS RELATING TO REQUESTS FOR ASSISTANCE
22. (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.
PART III—GENERAL PROVISIONS RELATING TO REQUESTS FOR ASSISTANCE
23. (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 Attorney-General or the Minister, 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.
PART III—GENERAL PROVISIONS RELATING TO REQUESTS FOR ASSISTANCE
24. (1) The Attorney-General or the Minister, 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 Attorney-General or the Minister, 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 Attorney-General 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 Attorney-General transmits documents or information subject to the condition specified in subsection (3), the Attorney-General 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.
PART III—GENERAL PROVISIONS RELATING TO REQUESTS FOR ASSISTANCE
25. (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 Attorney-General;
(b) the Minister;
(c) every member of the police force;
(d) every prison officer; and
(e) every employee of or contractor engaged by a Kenyan agency that is authorised to deal with the request.
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.
(a) The Court shall have the authority to make requests to States Parties for cooperation. The requests shall be transmitted through the diplomatic channel or any other appropriate channel as may be designated by each State Party upon ratification, acceptance, approval or accession. Subsequent changes to the designation shall be made by each State Party in accordance with the Rules of Procedure and Evidence.
(b) When appropriate, without prejudice to the provisions of subparagraph (a), requests may also be transmitted through the International Criminal Police Organization or any appropriate regional organization.
2. Requests for cooperation and any documents supporting the request shall either be in or be accompanied by a translation into an official language of the requested State or one of the working languages of the Court, in accordance with the choice made by that State upon ratification, acceptance, approval or accession. Subsequent changes to this choice shall be made in accordance with the Rules of Procedure and Evidence.
3. The requested State shall keep confidential a request for cooperation and any documents supporting the request, except to the extent that the disclosure is necessary for execution of the request.
4. In relation to any request for assistance presented under this Part, the Court may take such measures, including measures related to the protection of information, as may be necessary to ensure the safety or physical or psychological well-being of any victims, potential witnesses and their families. The Court may request that any information that is made available under this Part shall 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.
(a) The Court may invite any State not party to this Statute to provide assistance under this Part on the basis of an ad hoc arrangement, an agreement with such State or any other appropriate basis.
(b) Where a State not party to this Statute, which has entered into an ad hoc arrangement or an agreement with the Court, fails to cooperate with requests pursuant to any such arrangement or agreement, the Court may so inform the Assembly of States Parties or, where the Security Council referred the matter to the Court, the Security Council.
6. The Court may ask any intergovernmental organization to provide information or documents. The Court may also ask for other forms of cooperation and assistance which may be agreed upon with such an organization and which are in accordance with its competence or mandate.
7. Where a State Party fails to comply with a request to cooperate by the Court contrary to the provisions of this Statute, thereby preventing the Court from exercising its functions and powers under this Statute, the Court may make a finding to that effect and refer the matter to the Assembly of States Parties or, where the Security Council referred the matter to the Court, to the Security Council.