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.