Temporary transfer of persons in custody for purposes of identification or for obtaining testimony or other forms of assistance - national procedures for ICC proceedings

Kenya

Kenya - Criminal Procedure Code 1930 (2015) EN

PART IV – PROVISIONS RELATING TO ALL CRIMINAL INVESTIGATIONS

COMPELLING ATTENDANCE OF WITNESSES

148. Power of court to order prisoner to be brought up for examination

(1) A court desirous of examining, as a witness, in a case pending before it, a person confined in prison within the local limits of its jurisdiction, may issue an order to the officer in charge of the prison requiring him to bring the prisoner in proper custody, at a time to be named in the order, before the court for examination.

(2) The officer so in charge, on receipt of the order, shall act in accordance therewith, and shall provide for the safe custody of the prisoner during his absence from the prison.

Kenya - International Crimes Act 2008 EN

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 V—DOMESTIC PROCEDURES FOR OTHER TYPES OF CO-OPERATION

Temporary Transfer of Prisoners

91. (1) If the Attorney-General gives authority for the request to facilitate the temporary transfer of a Kenyan prisoner to proceed, he shall forward the request to the appropriate Kenyan agency.

(2) The Kenyan agency to which a request is forwarded under subsection (1) shall make such inquiries as may be necessary to ascertain if the prisoner will consent to the transfer.

(3) The Attorney-General may ask the ICC to give one or more of the following assurances—
(a) that the prisoner will not be released from custody without the prior approval of the Attorney-General;
(b) that the prisoner will be returned to Kenya without delay in accordance with arrangements agreed to by the Attorney-General;
(c) assurances relating to such other matters as he thinks appropriate.

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

Temporary Transfer of Prisoners

93. (1) If a prisoner who is charged with or convicted of an offence against the law of Kenya is transferred to the ICC under section 92, the provisions of section 94 shall apply to any period that the person spends
connection with the request before sentence is imposed for the Kenyan offence.

(2) If a prisoner who is serving a sentence for a
Kenyan offence is transferred to the ICC under
section 92—

(a) the prisoner is to be treated, while in custody
outside Kenya in connection with the request, as
being in custody for the purposes of the Kenyan
sentence, which shall continue to run; and

(b)the Attorney-General—

(i) may at any time notify the ICC that the
prisoner is no longer required to be kept in
custody; and

(ii) shall notify the ICC if the prisoner is no
longer liable to be detained in a Kenyan
prison.

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

Temporary Transfer of Prisoners

94. (1) If a prisoner who is charged with or convicted of an offence against the law of Kenya (in this section referred to as “the Kenyan offence”) is transferred to the ICC under section 92 before sentence is imposed for the Kenyan offence, the Attorney-General may -

(a) advise the ICC of the date on which the prisoner was sentenced for the Kenyan offence; and

(b) request the ICC to provide a certificate recording the total period during which the prisoner was detained outside Kenya in connection with the request until sentence was imposed for the Kenyan offence.
(2) A certificate obtained under subsection (1) shall be presumed to be accurate in the absence of any evidence to the contrary.
(3) The Attorney-General may issue a certificate setting out the date and period specified in subsection (1) if—

(a) the ICC does not provide a certificate within a reasonable time after the Attorney-General makes a request under subsection (1); and
(b) the Attorney-General is satisfied on such infor¬mation that he has that an accurate calculation can be made of the period referred to in paragraph (b) of subsection (1).

PART VII—PERSONS IN TRANSIT TO ICC OR SERVING SENTENCES IMPOSED BY ICC

Person in Transit

131. (1) This section and sections 132, 133, and 145to 151 shall apply to a person (hereinafter referred to as"the transferee") who—
(a) is being surrendered to the ICC by another State under article 89 of the Rome Statute;
(b) is a person to whom paragraph 7 of article 93 of the Rome Statute applies, and is being temporarily transferred to the ICC by another
State; or
(c) is a person sentenced to imprisonment by the ICC and who is being transferred to or from the ICC, or between States, in connection with that sentence.

(2) The transferee may be transported through Kenya for the purpose of being surrendered or transferred to the ICC or to another State, as the case may be.

(3) Before the transferee is transported through Kenya
under subsection (2), the ICC shall first transmit a request for transit in accordance with article 87 of the Rome Statute that contains the following information and documents—
(a) a description of the transferee;
(b) in the case of a person described in subsection (1) (a)—

(i) a brief statement of the facts of the case and their legal characterisation; and
(ii) a copy of the warrant for arrest and surrender;
(c) in the case of a person described in subsection (1) (b), such information as the Minister may request about the reasons for the temporary transfer.

(4) Notwithstanding subsection (3), the Minister shall not refuse a request for transit unless the Minister considers that transit through Kenya would impede or delay the surrender or transfer of the transferee.
(5) Notwithstanding subsection (3), no authorisation for transit is required if the transferee is transported by air and no landing is scheduled on Kenyan territory.
(6) If an unscheduled landing occurs on Kenyan territory, the Minister may require the ICC to submit a request for transit of the transferee under subsection (3) as soon as is reasonably practicable.

PART VII—PERSONS IN TRANSIT TO ICC OR SERVING SENTENCES IMPOSED BY ICC

Enforcement of Sentences in Kenya

140. (1) This section shall apply if the ICC—
(a) directs that an ICC prisoner appear before it to
give evidence in another case; or
(b) requests that an ICC prisoner appear before it for any other reason.
(2) The Minister—

(a) if subsection (1) (a) applies, shall direct that the ICC prisoner be transferred to the ICC; or
(b) if subsection (1) (b) applies, may direct that the ICC prisoner be transferred to the ICC if the Minister is satisfied that the interests of justice require the prisoner's attendance at the ICC.
(3) If the Minister gives a direction under subsection (2), section 139 (2) and (3) shall apply, with any neces¬sary modifications.
(4) This section shall not apply if the request by the ICC is a request to which section 90 (1) applies.

Kenya - Mutual Legal Assistance Act 2011 (2012) EN

PART IV – REQUEST FOR SPECIFIC FORMS OF LEGAL ASSISTANCE

16. Voluntary attendance of persons in custody

(1) Subject to section 17, a request under this Act may seek the temporary transfer of a person in custody in Kenya for purposes of identification, providing assistance in obtaining evidence for investigations or prosecutions or to appear as a witness before a court exercising jurisdiction in a requesting state.

(2) A request made under this section shall—
(a) state the name of the person in custody;
(b) if possible, state the place of confinement of the person in custody;
(c) state the place to which the person in custody is sought to be transferred;
(d) specify the subject matter on which it is desired to examine the witness;
(e) state the reasons for which personal appearance of the witness is required; and
(f) specify the period of time at or before the expiration of which the person in custody is to be returned.

(3) A statement of consent from the person in custody whose copy shall be made available to the Central Authority shall be a prerequisite for the transfer.

(4) A person in custody whose transfer is the subject of a request and who does not consent to the transfer shall not by reason thereof be liable to any penalty or measure of compulsion in either Kenya or a requesting state.

(5) Where a person in custody is transferred, the Central Authority shall notify a requesting state of—
(a) the date upon which the person is due under the law of Kenya to be released from custody;
(b) the date by which the Central Authority requires the return of the person;
(c) any variations in such dates in (a) and (b).

(6) A requesting state shall keep the person transferred in custody, and shall return the person to Kenya when the presence of such person as a witness in the requesting state is no longer required, and in any case by the earlier of the dates notified under subsection (5) of this section.

(7) The obligation to return the person transferred shall subsist notwithstanding the fact that the person is a national of a requesting state.

(8) A requesting state to which the person is transferred shall not require Kenya to initiate extradition proceedings for the return of the person.

(9) Where a person in custody who is serving a term of imprisonment in Kenya is transferred to a requesting state under a request made in this section, the time spent in custody shall count as part of any sentence required to be served by that person in custody for the purposes of the Prisons Act (Cap. 90).

(10) Nothing in this section shall preclude the release in a requesting state without return to Kenya of any person transferred where the two States and the person concerned have agreed to such release.


17. Exception for Kenyan citizens or young persons

Section 16 shall not apply in respect of a person who, at the time the application is presented, is a Kenyan citizen or a child within the meaning of the Children Act (No. 8 of 2001).

Rome Statute

Article 93 Other forms of cooperation

1. States Parties shall, in accordance with the provisions of this Part and under procedures of national law, comply with requests by the Court to provide the following assistance in relation to investigations or prosecutions:

(f) The temporary transfer of persons as provided in paragraph 7;

7.

(a) The Court may request the temporary transfer of a person in custody for purposes of identification or for obtaining testimony or other assistance. The person may be transferred if the following conditions are fulfilled:

(i) The person freely gives his or her informed consent to the transfer; and

(ii) The requested State agrees to the transfer, subject to such conditions as that State and the Court may agree.

(b) The person being transferred shall remain in custody. When the purposes of the transfer have been fulfilled, the Court shall return the person without delay to the requested State.