Consent to surrender

Republic of Kenya

Kenya - International Crimes Act 2008 EN


Eligibility for Surrender

41. (1) A person may at any time notify the High Court that he consents to being surrendered to the ICC for the international crime or crimes for which his surrender is sought.
(2) The Court may accept the notification of consent under subsection (1) if—

(a) the person is before the Court when notification of the consent to surrender is given;
(b) the person has been legally represented in the proceedings; and
(c) the Court is satisfied that the person has freely consented to the surrender in full knowledge of its consequences.
(3) Nothing in this Part prevents a person, in respect of whom a determination of eligibility for surrender is made by the High Court under section 39, from sub¬sequently notifying the Minister that he consents to surrender.
(4) A person arrested under a provisional warrant may consent to surrender before a request for surrender is received, in which case—
(a) the Minister may make a surrender order as if a
request for surrender had been received; and
(b) section 34 (1) (a) shall not apply.


Surrender and Temporary Surrender

(3) The Minister shall not make a surrender order in respect of a person until the later of the following times—
(a) until the expiration of fifteen days after the date of
the issue of the warrant of detention of that person
under section 42 (2) (a); or
(b) if an appeal, or an application for review or habeas corpus in respect of a determination under this Act, or any appeal from such an appeal or application, is pending, until after the date that the proceedings are finally determined and the result is that the person is eligible to be surrendered.

(4) Nothing in subsection (3) shall apply to -

(a) a person who has consented to surrender under section 41, whether before the High Court or subsequently by notice to the Minister; or

Rome Statute

Article 89 Surrender of persons to the Court

1. The Court may transmit a request for the arrest and surrender of a person, together with the material supporting the request outlined in article 91, to any State on the territory of which that person may be found and shall request the cooperation of that State in the arrest and surrender of such a person. States Parties shall, in accordance with the provisions of this Part and the procedure under their national law, comply with requests for arrest and surrender.

2. Where the person sought for surrender brings a challenge before a national court on the basis of the principle of ne bis in idem as provided in article 20, the requested State shall immediately consult with the Court to determine if there has been a relevant ruling on admissibility. If the case is admissible, the requested State shall proceed with the execution of the request. If an admissibility ruling is pending, the requested State may postpone the execution of the request for surrender of the person until the Court makes a determination on admissibility.


(a) A State Party shall authorize, in accordance with its national procedural law, transportation through its territory of a person being surrendered to the Court by another State, except where transit through that State would impede or delay the surrender.

(b) A request by the Court for transit shall be transmitted in accordance with article 87. The request for transit shall contain:

(i) A description of the person being transported;

(ii) A brief statement of the facts of the case and their legal characterization; and

(iii) The warrant for arrest and surrender;

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

(d) No authorization is required if the person is transported by air and no landing is scheduled on the territory of the transit State;

(e) If an unscheduled landing occurs on the territory of the transit State, that State may require a request for transit from the Court as provided for in subparagraph (b). The transit State shall detain the person being transported until the request for transit is received and the transit is effected, provided that detention for purposes of this subparagraph may not be extended beyond 96 hours from the unscheduled landing unless the request is received within that time.

4. If the person sought is being proceeded against or is serving a sentence in the requested State for a crime different from that for which surrender to the Court is sought, the requested State, after making its decision to grant the request, shall consult with the Court.