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

Finding Persons or Things, and Obtaining Evidence

77. (1) This section shall apply if the ICC requests, under paragraph 8 of article 19, article 56, article 64 or paragraph 1 (b) of article 93 of the Rome Statute, that—
(a) evidence be taken in Kenya; or
(b) documents or other articles in Kenya be produced.

(2) The Attorney-General shall give authority for the request to proceed if the Attorney-General is satisfied that—
(a) the request relates to an investigation being conducted by the Prosecutor or to any proceed¬ings before the ICC; and
(b) there are reasonable grounds for believing that the evidence can be taken or, as the case may be, the documents or other articles can be produced in Kenya.

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

Finding Persons or Things, and Obtaining Evidence

78. (1) If the Attorney-General gives authority for a request relating to the taking of evidence to proceed, the statement of each witness shall be taken in writing on the oath or affirmation of that witness by a Judge of the High Court.

(2) The Judge who takes evidence under subsection (1) shall—
(a) certify that the evidence was taken by the Judge; and
(b) ensure that the evidence, as certified, is sent to the Attorney-General.

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

Finding Persons or Things, and Obtaining Evidence

82. (1) The following persons may appear and be legally represented at a hearing held under section 78 or 79—
(a) the person to whom the proceedings before the ICC or the investigation conducted by the Prosecutor relates;
(b) any other person giving evidence or producing documents or other articles at the hearing;
(c) a representative of the Prosecutor or ICC.

(2) This section shall have effect subject to any contrary provision of the Rome Statute or the ICC Rules.
(3) A certificate by a Judge under section 78 (2) or section 79 (2) shall state whether any of the persons specified in subsection (1) were present when the evidence was taken or the documents or other articles were produced.

PART IV – REQUEST FOR SPECIFIC FORMS OF LEGAL ASSISTANCE

19. Lending of exhibits

(1) A request under this Act may seek to have an exhibit that was admitted in evidence in a proceeding in respect of an offence in a court in Kenya lent to a requesting state.

(2) An application made under subsection (1) shall—
(a) contain a description of the exhibit requested to be lent;
(b) designate a person or class of persons to whom the exhibit is sought to be given;
(c) state the reasons for the request, as well as contain a description of any tests that are sought to be performed on the exhibit and a statement of the place where the tests will be performed;
(d) state the place to which the exhibit is sought to be removed; and
(e) specify a period of time at or before the expiration of which the exhibit is to be returned.

(3) Where an exhibit is lend to a requesting state upon request made under subsection (1), the Central Authority shall notify a requesting state of—
(a) description of the exhibit;
(b) description of any tests thereby authorized to be performed on the exhibit, as well as a statement of the place where the tests will be performed; and
(c) the period of time of which the exhibit shall be returned.


20. Presumption of continuity

The burden of proving that an exhibit, lent to a requesting state pursuant to a request under section 19 and returned to Kenya, is not in the same condition as it was when the lending was made or that it was tampered with after the lending was made shall be on the party who makes that allegation and in the absence of that proof, the exhibit shall be deemed to have been continuously in the possession of an authorized person or authority.