PART IV—ARREST AND SURRENDER OF PERSONS TO ICC

Restrictions on Surrender

57. If a request for surrender of a person is received from the ICC and one or more States also request the extradition of the person for the same conduct that forms the basis of the crime for which the ICC seeks the person's surrender, the Minister—
(a) shall notify the ICC and the requesting State of that fact; and
(b) shall determine, in accordance with section 58 or section 59, but without regard to any provision of
the Extradition (Commonwealth Countries) Act or the Extradition (Contiguous and Foreign Countries) Act, whether the person is to be surrendered to the ICC or to the requesting State.

58. (1) If section 57 applies and the requesting State is a party to the Rome Statute, priority shall be given to the request from the ICC if—
(a) the ICC has, under article 18 or article 19 of the Rome Statute, made a determination that the case in respect of which surrender is sought is admissible and that determination takes into account the investigation or prosecution conduc¬ted by the requesting State in respect of its request for extradition; or
(b) the ICC makes such a determination after receiving notification of the competing request.

(2) If the request is one to which subsection (1) (b) relates, then, pending the ICC's determination—
(a) the steps required to be taken under theExtradition (Commonwealth Countries) Act or the Extradition (Contiguous and Foreign Countries) Act, as the case may be, in relation to a
request for extradition may continue to be taken;
and
(b) no person may be surrendered under the relevant Act unless and until the ICC makes its decision on admissibility and determines that the case is inadmissible.

59. (1) If section 57 applies and the requesting State is not a party to the Rome Statute, priority shall be given to the request for surrender from the ICC if—
(a) Kenya is not under an international obligation to extradite the person to the requesting State; and
(b) the ICC has determined under article 18 or article 19 of the Rome Statute that the case is admissible.
(2) If section 57 applies and the requesting State is not a party to the Rome Statute, the request for extradition may continue to be dealt with if—
(a) Kenya is not under an international obligation to extradite the person to the requesting State; and
(b) the ICC has not yet determined under article 18 and article 19 of the Rome Statute that the case is admissible.
(3) Notwithstanding subsection (2), no person may be surrendered under the Extradition (Commonwealth Countries) Act or the Extradition (Contiguous and For¬eign Countries) Act, as the case may be, unless and until the ICC makes its decision on admissibility and det¬ermines that the case is inadmissible.
(4) If section 57 applies, and the requesting State is not a party to the Rome Statute, and Kenya is under an international obligation to extradite the person to the requesting State, the Minister shall determine whether to surrender the person to the ICC or extradite the person to the requesting State.
(5) In making the determination under subsection (4), the Minister shall consider all the relevant factors, including—

(a) the respective dates of the requests;
(b) the interests of the requesting State, including, if relevant, whether the crime was committed in its territory and the nationality of the victims and of the person sought; and
(c) the possibility of subsequent surrender between the ICC and the requesting State.

60. (1) If a request for surrender of a person is to received from the ICC and a request for the extradition of that person is received from one or more States for conduct other than that which constitutes the crime for which the ICC seeks the person's surrender, the Minister shall determine whether the person is to be surrendered to the ICC or to the requesting State.

(2) If Kenya is not under an existing international obligation to extradite the person to the requesting State, priority shall be given to the request from the ICC.

(3) If Kenya is under an existing international obligation to extradite the person to the requesting State, the Minister shall determine whether to surrender the person to the ICC or to extradite the person to the requesting State.

(4) In making the determination under subsection (3), the Minister shall consider all the relevant factors, including those matters specified in section 59, but shall give special consideration to the relative seriousness of the offences for which surrender is sought.

61. (1) If, following notification under article 90 of the Rome Statute, the ICC has determined that a case is inadmissible and the Minister subsequently refuses extradition of the person to the requesting State under the Extradition (Commonwealth Countries) Act or the Extradition (Contiguous and Foreign Countries) Act, as the case may be, the Minister shall notify the ICC of this decision.

(2) The obligation in this section is in addition to the requirement in section 26 for the Minister to respond formally to the request from the ICC.


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.

PART V—DOMESTIC PROCEDURES FOR OTHER TYPES OF CO-OPERATION

Restrictions on Provision of Assistance

110. (1) The Attorney-General may postpone the execution of a request for assistance under this Part if, and only if—

(c) there are competing requests from the ICC and from another State to which Kenya is under an international obligation and section 114 (2) (a) applies;

PART V—DOMESTIC PROCEDURES FOR OTHER TYPES OF CO-OPERATION

Restrictions on Provision of Assistance

114. (1) If the Attorney-General receives competingrequests for assistance from the ICC and from another State to which Kenya is under an obligation to respond, he shall endeavour, after consultation with the ICC and the other State, to satisfy both requests.

(2) For the purposes of subsection (1), the Attorney-General may do either or both of the following—
(a) postpone the execution of either of the competing requests;
(b) attach conditions to the provision of assistance under either or both of the requests.

(3) If it is not possible to resolve the issue by consultation, the method of dealing with the competing requests shall be resolved in accordance with article 90 of the Rome Statute, and sections 57 to 61 shall apply, with any necessary modifications.