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.

PART II – ESTABLISHMENT OF CENTRAL AUTHORITY

5. Central Authority

(1) There is established an authority to be known as the Central Authority to perform functions specified in this Act.

(2) The office of the Attorney-General shall be designated as the Central Authority established under subsection (1) of this section.


6. Functions of central authority

(1) The functions of the Central Authority shall include—
(a) transmitting and receiving requests for legal assistance and executing or arranging for the execution of such requests;
(b) ensuring that requests for legal assistance conform to the requirements of law and Kenya’s international obligations;
(c) where necessary, certifying or authenticating, or arranging for the certification and authentication of, any documents or other material supplied in response to a request for legal assistance;
(d) taking practical measures to facilitate the orderly and rapid disposition of requests for legal assistance;
(e) negotiating and agreeing on conditions related to requests for legal assistance, as well as to ensuring compliance with those conditions;
(f) making any arrangements deemed necessary in order to transmit the evidentiary material gathered in response to a request for legal assistance to a requesting state or to authorize any other authority to do so;
(g) carrying out such other tasks as provided for by this Act or which may be necessary for effective legal assistance to be provided or received.

PART III – MAKING AND EXECUTION OF LEGAL ASSISTANCE REQUESTS


8. Incoming requests for legal assistance

(1) A request from a requesting state shall be made in writing to the Central Authority.

(2) Upon receipt of the request under subsection (1), the Central Authority shall as soon as is reasonably practicable acknowledge receipt of such request and forthwith transmit the same to the relevant competent authority.

(3) For the purpose of subsection (1), “in writing” includes e-mail, facsimile or other agreed forms of electronic transmission provided that appropriate levels of security and authentication are put in place.

(4) Subject to the provisions of this Act, the Competent Authority shall grant the legal assistance requested in subsection (1) as expeditiously as practicable.

(5) The Competent Authority may seek additional information from a requesting state if it considers necessary.

(6) If the Competent Authority considers that—
(a) the request does not comply with the provisions of this Act; or
(b) in accordance with the provisions of this Act, the request for legal assistance is to be refused in whole or in part; or
(c) the request cannot be complied with, in whole or in part; or
(d) there are circumstances which are likely to cause a significant delay in complying with the request,
it shall promptly inform a requesting state, giving reasons .

29A. Admission of witnesses from foreign countries on reciprocal basis
(1) The Director, in consultation with the Attorney-General, may on the basisof any treaty or convention ratified by Kenya enter into a written agreement with a competent authority from a foreign country—
(a) to admit, on reciprocal basis, qualifying witnesses from that country into the witness protection programme under this Act; or
(b) to have Kenyan witnesses protected under the witness protection regime of that foreign country.
(2) The particulars for the agreement referred to under subsection (1) shallinclude—
(a) personal particulars and relevant documentation with respect to the witnesses sought to be protected;
(b) the reasons for their protection, and the nature of the risk or threat they are facing;
(c) the period of protection;
(d) the source of funding to meet their protection costs; and
(e) any other relevant particulars.
[Act No. 45 of 2016, s. 18.]
29B. Application for admission of a foreign witness
(1) An application for protection under this Part shall be in the prescribed form. (2) Upon receipt of an application under subsection (1), the Director shall assess and, after consultation with the Attorney-General, determine whether or not to admit the witness into the programme.
(3) Before a foreign witness is admitted into the programme under this section,the Director shall—
(a) request to be furnished with such further information as may be necessary; and
(b) confirm that the foreign authority requesting for such protection shall provide all the resources and other material necessary for the protection.
(4) Where it is decided to admit a foreign witness in the programme, the Directorshall liaise with the Cabinet Secretary responsible for immigration for the necessary permits.
(5) The Agency may make Regulations to give full effect of this Part.