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

Other Types of Assistance

108. (1) Where the ICC requests any other type of assistance under paragraph 1 (l) of article 93 of the Rome Statute for the purposes of facilitating the investigation and prosecution of crimes within the jurisdiction of the ICC, the Attorney-General shall give authority for the request 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) the assistance sought is in accordance with Kenyan law.

(2) If the Attorney-General gives authority for the request to proceed—
(a) he shall—
(i) take such steps as the Attorney-General thinks
appropriate in the particular case; and
(ii) forward the request to the appropriate Kenyan
agency; and
(b) that agency shall, without delay—
(i) use its best endeavours to give effect to the request;
(ii) make such report on its endeavours as it considers to be appropriate in the circumstances; and
(iii) deliver the report to the Attorney-General.

(3) If the Attorney-General considers that the assistance sought cannot lawfully be provided, he shall, before refusing the request, and in accordance with paragraph 5 of article 93 of the Rome Statute—
(a) consult with the ICC; and
(b) consider whether the assistance can be provided subject to conditions or whether it can be provided at a later date or in an alternative
manner.

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

Restrictions on Provision of Assistance

110. (1) The Attorney-General may postpone the execution of a request for assistance under this Part if, and only if—

(d) the request is for assistance under paragraph 1 (l) of article 93 of the Rome Statute and is one to which section 108 (3) applies; or

PART IV – REQUEST FOR SPECIFIC FORMS OF LEGAL ASSISTANCE

22. Use of video conferencing technology

A testimony, identification of a person or thing or any other form of legal assistance under this Part may be provided by use of video or audio transmission technology.

PART VI – INTERCEPTION OF COMMUNICATIONS, PRESERVATION OF COMMUNICATIONS DATA AND COVERT ELECTRONIC SURVEILLANCE

27. Interception of telecommunications

(1) For the purpose of a criminal investigation, Kenya may, in accordance with the provisions of this Act and any other relevant law, execute a request from a requesting state for—
(a) the interception and immediate transmission of telecommunications; or
(b) the interception, recording and subsequent transmission of telecommunications.

(2) Without prejudice to the generality of subsection (1), a request may be made in relation to the use of means of telecommunications by the subject of the interception, if this subject is present in—
(a) Kenya and a requesting state needs the technical assistance of Kenya to intercept such communications; or,
(b) Kenya and a requesting state communications are capable of being intercepted; or
(c) a third state, which has been informed accordingly and a requesting state need the technical assistance of Kenya to intercept such communications.

(3) A request under this section shall include—
(a) an indication of the authority making the request;
(b) confirmation that a lawful interception order or warrant has been issued in connection with a criminal investigation, if such an order or warrant is required by law;
(c) information for the purpose of identifying the subject of the requested interception;
(d) details of the criminal conduct under investigation;
(e) the desired duration of the interception; and
(f) if possible, the provision of sufficient technical data, in particular the relevant network connection number, communications address or service identifier to ensure that the request can be met.

(4) Where a request has been made under subsection (1)(a) and the immediate transmission of the contents of an intercepted communication is not possible, Kenya shall undertake to comply with the request as though it were made under subsection 1(b).

(5) The information provided under this section shall be confidential and shall be kept in accordance with the provisions of this Act or any other relevant written law.


28. Stored communications

Nothing in this Part shall preclude a requesting state from making a request for legal assistance in accordance with Kenyan law for the provision of stored communications.


29. Interception of items during the course of carriage by a public postal service

For the purpose of a criminal investigation, a requesting state may, in accordance with the requirements of this Act or any other relevant law, make a request to Kenya for the interception of an item during the course of its carriage by a public postal service and immediate transmission of the said item or a copy thereof.


30. Bilateral or multilateral arrangements

Nothing in this Part shall preclude any bilateral or multilateral arrangements for the purpose of facilitating the exploitation of present and future technical possibilities regarding the lawful interception of telecommunications.


31. Preservation of communications data

(1) A requesting state may request Kenya for the preservation of communications data.

(2) A request made under subsection (1) may be directly transmitted to Kenya and shall be executed in accordance with Kenyan law.

(3) A request for the preservation of communications data made under this section shall—
(a) specify the identity of the authority making the request;
(b) contain a brief description of the conduct under investigation;
(c) contain a description of the communications data to be preserved
and its relationship to the investigation or prosecution, and in particular identifying whether the communications data to be preserved includes—
(i) subscriber information;
(ii) traffic data;
(iii) any other information falling within the definition of communications data.
(d) contain a statement that a requesting state intends to submit a
request for legal assistance to obtain the communications data within the period permitted under this section.

(4) The preservation of communications data pursuant to a request made under this section shall be for a period of one hundred and twenty days, pending submission by a requesting state of a request for legal assistance to obtain the preserved communications data however, following the receipt of such a request, the data shall continue to be preserved pending the determination of that request and, if the request is granted, until the data is obtained pursuant to the request for legal assistance.

(5) If the Competent Authority considers that the preservation of communications data pursuant to a request made under this section will not ensure the future availability of the communications data, or will threaten the confidentiality of, or otherwise prejudice the investigation in a requesting state, it shall promptly inform a requesting state, which shall then determine whether the request should nevertheless be executed.

(6) Notwithstanding the grounds for refusal under this Act, a request for the preservation of communications data under this section may be refused only to the extent that it appears to the Central Authority that compliance would be contrary to the laws or Constitution of Kenya, or would prejudice the security, international relations, or other essential public interests of Kenya.


32. Covert electronic surveillance

(1) A request may be made to Kenya from a requesting state for deployment of covert electronic surveillance.

(2) Covert electronic surveillance shall take place in accordance with the procedures provided for under Kenyan law.

(3) Nothing in this section shall preclude a request for assistance involving surveillance, including the use of a tracking device, other than that provided for in this section.

PART VIII – GENERAL PROVISIONS

40. Dual criminality and reciprocity

Kenya shall adopt such measures as may be necessary to enable it to provide a wider scope of legal assistance to a requesting state in absence of dual criminality and reciprocity.

PART VIII – GENERAL PROVISIONS

48. Special co-operation

Subject to any written law and without prejudice to its own investigations, prosecutions or judicial proceedings, Kenya shall take measures to permit it to forward information on proceeds of criminal offences to a requesting state without prior request, where it considers that—
(a) the disclosure of such information might assist a requesting state in initiating or carrying out investigations, prosecutions or judicial proceedings; or
(b) it might lead to a request by a requesting state under this Act.