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
Provisional Arrest in Certain Cases
32. (1) A Judge of the High Court may issue a provisional warrant in the prescribed form for the arrest of a person if the Judge is satisfied on the basis of the information presented to him that—
(a) a warrant for the arrest of a person has been issued by the ICC or, in the case of a convicted person, a judgment of conviction has been given in relation to an international crime;
(b) the person named in the warrant or judgment is or is suspected of being in Kenya or may come to
Kenya; and
(c) it is necessary or desirable for an arrest warrant to be issued urgently.
PART IV—ARREST AND SURRENDER OF PERSONS TO ICC
Provisional Arrest in Certain Cases
33. (1) If a Judge issues a provisional arrest warrant
under section 32, the applicant for the warrant shall report
the issue of the warrant to the Minister without delay.
(2) The applicant shall include in the report to the Minister a copy of the warrant issued by the ICC, or the judgment of conviction, as applicable, and the other documentary evidence that the applicant produced to the Judge.
PART IV—ARREST AND SURRENDER OF PERSONS TO ICC
Provisional Arrest in Certain Cases
34. (1) If a person has been arrested on a Provisional arrest warrant issued under section 32, the following provisions shall apply—
(a) the hearing of the proceedings shall not proceed until the High Court receives from the Minister a notice in writing stating that a request for the surrender of the person has been transmitted to the Minister in the manner specified in section 21;
(b) pending the receipt of the notice from the Minister, the proceedings may from time to time be adjourned;
(c) the High Court shall set a date by which the notice is to be transmitted to it, and in so doing shall have regard to—
(i) any provision in the ICC Rules that prescribes the maximum period for transmission by the ICC of the request and supporting documents to the requested State;
(ii) if there is no such provision, the time it is likely to take for the ICC to prepare and transmit the request and supporting documents to Kenya;
(iii) the time it is likely to take for the Minister to consider the request after receipt and for the notice to be transmitted to the High Court;
(d) if the High Court does not receive the notice within the time fixed by the Court under paragraph (c), and does not extend that time under subsection (2), the High Court shall discharge the person.
(2) The High Court may, from time to time, in its discretion, extend any time fixed by it under subsection
(1)(c).
1. In urgent cases, the Court may request the provisional arrest of the person sought, pending presentation of the request for surrender and the documents supporting the request as specified in article 91.
2. The request for provisional arrest shall be made by any medium capable of delivering a written record and shall contain:
(a) Information describing the person sought, sufficient to identify the person, and information as to that person's probable location;
(b) A concise statement of the crimes for which the person's arrest is sought and of the facts which are alleged to constitute those crimes, including, where possible, the date and location of the crime;
(c) A statement of the existence of a warrant of arrest or a judgement of conviction against the person sought; and
(d) A statement that a request for surrender of the person sought will follow.
3. A person who is provisionally arrested may be released from custody if the requested State has not received the request for surrender and the documents supporting the request as specified in article 91 within the time limits specified in the Rules of Procedure and Evidence. However, the person may consent to surrender before the expiration of this period if permitted by the law of the requested State. In such a case, the requested State shall proceed to surrender the person to the Court as soon as possible.
4. The fact that the person sought has been released from custody pursuant to paragraph 3 shall not prejudice the subsequent arrest and surrender of that person if the request for surrender and the documents supporting the request are delivered at a later date.