PART IV—ARREST AND SURRENDER OF PERSONS TO ICC

Miscellaneous Provisions relating to Arrest and Surrender

72. (1) If a person is arrested on a warrant issued
under this Part, a member of the police force may, without further warrant, search the person arrested and may seize any thing, including any sum of money, found on him or in his possession if the member of the police force believes on reasonable grounds that the thing on the person or in his possession may be evidence as to the commission of any offence in relation to which the warrant to arrest was issued or for which the surrender of the person is sought by the ICC.
(2) If there is no suitable searcher available at the place where the search is to take place, the person to be searched may be taken to another place to be searched.
(3) Nothing in this section limits or affects the right at common law of a constable to search a person on that person's arrest or any statutory power conferred on a member of the police force.
(4) If any thing is seized under subsection (1) from the person arrested—
(a) the member of the police force shall make a report to the Minister specifying the items seized and any other relevant information; and
(b) the Minister shall, on receipt of the report referred to in paragraph (a), provide the ICC with a report on the seizure.

73. (1) If the Minister makes a surrender order or temporary surrender order under this Act, the Minister may also direct that any thing that was seized under section 72 that may be evidence of the offence the person is alleged to have committed or has committed be delivered with the person on his surrender to the ICC.
(2) If the person cannot be surrendered or temporarily surrendered by reason of the person's death or escape from custody, the Minister may direct that any thing that was seized under section 72 that may be evidence of the offence the person is alleged to have committed or has committed be delivered up to the ICC.
(3) If a person is discharged under this Act without being surrendered or temporarily surrendered, the Minister may direct that any thing seized under section 72 be returned to the person from whom it was seized.
(4) The Minister may refuse to direct that any thing referred to in subsection (1) or subsection (2) be delivered to the ICC if the thing is required for the investigation of an offence within the jurisdiction of Kenya.
(5) The Minister may refuse to direct that any thing referred to in subsection (3) be returned to the person if—

(a) the thing is the subject of a dispute as to who is entitled to it;
(b) the thing is required for the investigation of an offence within the jurisdiction of Kenya; or
(c) possession of the thing by the person would be unlawful in Kenya.

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

Evidence

96. (1) Where the ICC makes a request under paragraph 8 of article 19, article 56, article 64 or paragraph 1 (h) of article 93 of the Rome Statute for search and seizure, the Attorney-General shall give authority for therequest 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) any thing relevant to the investigation or proceedings is or may be located in Kenya.

(2) If the Attorney-General gives authority for the request to proceed, he may authorise a member of the police force, in writing, to apply to a Judge of the High Court for a search warrant under section 97.

97. (1) Where a Judge of the High Court, on an application in writing made on oath or affirmation by a member of the police force, is satisfied that there are reasonable grounds for believing that there is in or on any place or thing—
(a) any thing on or in respect of which an inter¬national crime has been, or is suspected of having been, committed; or
(b) any thing that may be evidence as to the commission of any such crime,
the Judge shall issue a warrant in respect of that thing.

(2) A Judge shall not issue a warrant under this section unless the application contains, or the applicant otherwise supplies to the Judge, such information as the
Judge requires concerning the grounds on which the warrant is sought.

(3) A Judge may issue a warrant under this section subject to such conditions as he thinks fit.

98. A warrant issued under section 97 shall—
(a) be in the prescribed form;
(b) be directed to a member of the police force by name, or to any class of members of the police specified in the warrant, or generally to every member of the police force; and
(c) specify any conditions that the Judge has imposed under section 97 (3).

99. (1) Subject to any conditions specified in the warrant under section 98, a warrant issued under section 97 authorises the member of the police force executing the warrant—
(a) to enter and search the place or thing specified in the warrant at any time by day or night during the currency of the warrant;
(b) to use such assistants as may be reasonable in the circumstances for the purpose of the entry and search;
(c) to use such force as is reasonable in the circum¬stances for the purposes of effecting entry, and for breaking open any thing in or on the place searched; and
(d) to search for and seize any thing referred to in section 97 (1).

(2) A person called on to assist any member of the police force executing a warrant issued under section 97 has the powers described in paragraphs (c) and (d) of sub¬section (1).



100. (1) A member of the police force may stop a vehicle (other than an aircraft which is airborne) for the purpose of exercising a search power conferred by a


warrant issued under section 97.

(2) A person who fails to stop a vehicle when required to do so by virtue of this section is guilty of an offence and shall be liable on conviction to imprisonment for a term not exceeding sir months or to a fine, or both.

101. Every member of the police force executing any
(a) shall have that warrant with him;
(b) shall produce it on initial entry and, if requested, at any subsequent time; and
(c) shall, if requested at the time of the execution of the warrant or at any subsequent time, provide a copy of the warrant within seven days after the request is made.


102. (1) Every member of the police force who executes a warrant issued under section 97 shall, not later than seven days after the seizure of any thing under that warrant, give to the owner or occupier of the place or thing searched, and to every other person whom the member of the police force has reason to believe may have an interest in the thing seized, a written notice specifying—
(a) the date and time of the execution of the warrant;
(b) the identity of the person who executed the warrant; and
(c) the thing seized under the warrant.

(2) If the warrant is executed, a report on the execution of the warrant, together with a copy of any notice given under subsection (1) shall be sent to the Attorney-General, without delay.

(3) If the warrant is not able to be executed, a report explaining the reasons for this shall be sent to the Attorney-General without delay.

103. (1) If a member of the police force seizes a thing under a warrant issued under section 97, it shall be delivered into the custody and control of—
(a) the Commissioner of Police; or
(b) a commissioned officer of police designated by
the Commissioner to receive things seized under
this Act.
(2) The Commissioner of Police or designated officer shall—

(a) inform the Attorney-General, without delay, that the thing has been so delivered;
(b) retain the thing for a period not exceeding three months from the day on which the thing was seized, pending the Attorney-General's direction under subsection (3) about how to deal with it; and
(c) comply with any direction that the Attorney-General gives him.
(3) The Attorney-General may, by written notice, give the Commissioner of Police or the designated officer a direction—

(a) requiring the Commissioner or designated officer to send the thing to the ICC; or
(b) requiring the Commissioner or designated officer to deal with it in some other way.
(4) The Attorney-General shall direct the Commis¬sioner of Police or the designated officer to return the thing seized to the person from whose possession it was seized as soon as practicable, if—

(a) the ICC advises that the thing is not required for the Prosecutor's investigation or its proceedings; or
(b) no other direction is given by the Attorney-General before the expiry of three months from the day on which the thing was seized.

(5) Notwithstanding subsection (4), the Attorney-
General may refuse to return the thing to the person from whom it was seized if—
(a) the thing is the subject of a dispute as to who is entitled to it;
(b) the thing is required for the investigation of an offence within the jurisdiction of Kenya; or
(c) possession of the thing by the person would be unlawful in Kenya.

PART IV – REQUEST FOR SPECIFIC FORMS OF LEGAL ASSISTANCE

18. Search and seizure

(1) A request under this Act may seek assistance in the search and seizure of property in Kenya.

(2) The request made under subsection (1) shall specify the property to be searched and seized and shall contain, so far as is reasonably practicable, all information available to a requesting state which may be required to be adduced in an application under Kenyan law for any necessary warrant or authorization to effect the search and seizure.

(3) Subject to the relevant law, the Competent Authority shall provide such certification as may be required by a requesting state concerning the result of any search, the place and circumstances of seizure, and the subsequent custody of the property seized.