Competing request - same conduct - State party - case admissible

Kenya

The International Crimes Act 2008

PART IV—ARREST AND SURRENDER OF PERSONS TO ICC

Surrender and Temporary Surrender

43. (2) The Minister shall make a surrender order in respect of the person concerned unless—
(b) the Minister is satisfied that one of the discretionary restrictions on surrender specified in section 51 (2) applies and that it is appropriate in the circumstances that surrender be refused;

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—

(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.

PART IV—ARREST AND SURRENDER OF PERSONS TO ICC

Restrictions on Surrender

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.

Rome Statute

Article 90 Competing requests

2. Where the requesting State is a State Party, the requested State shall give priority to the request from the Court if:

(a) The Court has, pursuant to article 18 or 19, 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 conducted by the requesting State in respect of its request for extradition; or

(b) The Court makes the determination described in subparagraph (a) pursuant to the requested State's notification under paragraph 1.