International Crimes Act

Section 1. Short title Section This Act may be cited as the International Crimes Act.

Section 2. Interpretation Section 2(1)(a) sentenced to imprisonment by the ICC; or Section 2(1)(b) the subject of a request by the ICC under section 166 (1)(b) to be held in custody during a sitting of the ICC in Kenya; Section 2(2)(a) a reference to a request by the ICC for assistance includes a reference to a request by the ICC for co-operation; Section 2(2)(b) a reference to a request by the ICC for assistance under a specified provision or in relation to a particular matter includes a reference to a request by the ICC for co-operation under that provision or in relation to that matter; Section 2(2)(c) a reference to a sentence of imprisonment imposed by the ICC includes a reference to a sentence of imprisonment extended by the ICC (whether for the non-payment of a fine or otherwise); Section 2(2)(d) a reference to a sentence of imprisonment imposed by the ICC for an international crime or an offence against the administration of justice includes a reference to a sentence of imprisonment imposed by the ICC for non-payment of a fine that was a penalty for that crime or offence, as the case may be.

Section 3. Act to bind the Government Section This Act shall be binding on the Government.

Section 4. Rome Statute to have force of law Section 4(1)(a) the making of requests by the ICC to Kenya for assistance and the method of dealing with those requests; Section 4(1)(b) the conduct of an investigation by the Prosecutor or the ICC; Section 4(1)(c) the bringing and determination of proceedings before the ICC; Section 4(1)(d) the enforcement in Kenya of sentences of imprisonment or other measures imposed by the ICC, and any related matters; Section 4(1)(e) the making of requests by Kenya to the ICC for assistance and the method of dealing with those requests. Section 4(2)(a) Part 2 (which relates to jurisdiction, admissibility, and applicable law); Section 4(2)(b) Part 3 (which relates to general principles of criminal law); Section 4(2)(c) articles 51 and 52 (which relate respectively to the Rules of Procedure and Evidence, and Regulations of the Court); Section 4(2)(d) Part 5 (which relates to the investigation and prosecution of crimes within the jurisdiction of the ICC); Section 4(2)(e) Part 6 (which relates to the conduct of trials); Section 4(2)(f) Part 7 (which relates to penalties); Section 4(2)(g) Part 8 (which relates to appeals and revision of acquittals, convi...

Section 5. Obligations imposed by Rome Statute or ICC Rules Section For the purposes of any provision of the Rome Statute or the ICC Rules that confers or imposes a power, duty or function on a State, that power, duty or function may be exercised or carried out on behalf of the Government of Kenya by the Director of Public Prosecutions, if this Act makes no other provision in that behalf. [Act No. 19 of 2023 , Sch.]

Section 6. Genocide, etc. Section 6(1)(a) genocide; Section 6(1)(b) a crime against humanity; or Section 6(1)(c) a war crime, is guilty of an offence. Section 6(2) A person who, in Kenya or elsewhere, conspires or attempts to commit, or is an accessory after the fact in relation to, or who counsels in relation to, an offence mentioned in subsection (1) is guilty of an offence. Section 6(3)(a) to be punished as for murder, if an intentional killing forms the basis of the offence; or Section 6(3)(b) to imprisonment for life or for a lesser term, in any other case. Section 6(4) In this section— "crime against humanity" has the meaning ascribed to it in article 7 of the Rome Statute and includes an act defined as a crime against humanity in conventional international law or customary international law that is not otherwise dealt with in the Rome Statute or in this Act; "genocide" has the meaning ascribed to it in article 6 of the Rome statute; "war crime" has the meaning ascribed to it in paragraph 2 of article 8 of the Rome Statute. [Cf. Rome Statute, articles 6 to 8.]

Section 7. General principles of criminal law Section 7(1)(a) article 20 (which relates to crimes for which a person has previously been acquitted or convicted); Section 7(1)(b) article 21 (which deals with the law applicable at proceedings at international level); Section 7(1)(c) paragraph 2 of article 22 (which relates to principles of interpretation to be applied to the definition of crimes); Section 7(1)(d) article 25 (which relates to principles of individual criminal responsibility); Section 7(1)(e) article 26 (which relates to the exclusion of jurisdiction over persons under eighteen years); Section 7(1)(f) article 28 (which relates to the responsibility of commanders and other superiors); Section 7(1)(g) article 29 (which excludes any statute of limitations); Section 7(1)(h) article 30 (which relates to the mental element of crimes); Section 7(1)(i) article 31 (which specifies grounds for excluding criminal responsibility); Section 7(1)(j) article 32 (which relates to mistakes of fact or law); Section 7(1)(k) article 33 (which relates to superior orders and prescription of law). Section 7(2)(a) the provisions of Kenyan law and the principles of criminal law applicable to th...

Section 8. Jurisdiction to try offences undersection 6 Section 8(1)(a) the act or omission constituting the offence is alleged to have been committed in Kenya; or Section 8(1)(b) the person was a Kenyan citizen or was employed by the Government of Kenya in a civilian or military capacity; Section 8(1)(b)(i) the person was a Kenyan citizen or was employed by the Government of Kenya in a civilian or military capacity; Section 8(1)(b)(ii) the person was a citizen of a state that was engaged in an armed conflict against Kenya, or was employed in a civilian or military capacity by such a state; Section 8(1)(b)(iii) the victim of the alleged offence was a Kenyan citizen; or Section 8(1)(b)(iv) the victim of the alleged offence was a citizen of a state that was allied with Kenya in an armed conflict; or Section 8(1)(c) the person is, after commission of the offence, present in Kenya. Section 8(2) A trial authorised by this section to be conducted in Kenya shall be conducted in the High Court.

Section 9. Bribery of judges and officials Section 9(1)(a) in respect of anything done or omitted, or to be done or omitted, by him in his official capacity; or Section 9(1)(b) with intent to interfere in any other way with the administration of justice of the ICC, is guilty of an offence and liable on conviction to imprisonment for a term of not more than fourteen years. Section 9(2)(a) in respect of anything done or omitted, or to be done or omitted, by him in his official capacity; or Section 9(2)(b) with intent to interfere in any other way with the administration of justice of the ICC, is guilty of an offence and liable on conviction to imprisonment for a term of not more than fourteen years.

Section 10. Obstructing justice Section 10(1) A person who wilfully attempts in any manner to obstruct, pervert or defeat the course of justice of the ICC is guilty of an offence and liable on conviction to imprisonment for a term of not more than five years. Section 10(2)(a) dissuades or attempts to dissuade a person by threats, bribes or other corrupt means from giving evidence; or Section 10(2)(b) accepts, obtains, agrees to accept or attempts to obtain a bribe or other corrupt consideration to abstain from giving evidence.

Section 11. Obstructing officials Section A person who resists or wilfully obstructs an official of the ICC in the execution of his duty, or any person lawfully acting in aid of such an official, is guilty of an offence and liable on conviction to imprisonment for a term of not more than two years.

Section 12. Perjury Section 12(1) A person who, with intent to mislead, makes a false statement under oath or solemn affirmation before a judge of the ICC or an official of that Court who is authorized by the Court to permit statements to be made before him, knowing that the statement is false, is guilty of the offence of perjury and liable on conviction to imprisonment for a term of not more than seven years. Section 12(2)(a) whether or not the statement is made in judicial proceedings of the ICC; and Section 12(2)(b) whether the statement is made by affidavit, solemn declaration or deposition or orally. Section 12(3) Subsection (1) shall not apply to a statement that is made by a person who is not specially permitted, authorized or required by law to make that statement.

Section 13. Witness giving contradictory evidence Section 13(1)(a) being a witness in any proceedings of the ICC, gives evidence with respect to any matter of fact or knowledge; Section 13(1)(b) later, in any proceedings of the Court, gives evidence that is contrary to his previous evidence; and Section 13(1)(c) in giving his evidence in either proceedings, does so with intent to mislead, is guilty of an offence and liable on conviction to imprisonment for a term of not more than two years, whether or not the prior or later evidence is true. Section 13(2) In this section, "evidence" does not include evidence that is not material. Section 13(3) If a person is charged with an offence under this section, a certificate that specifies with reasonable particularity the proceedings in which the person is alleged to have given the evidence in respect of which the offence is charged shall be evidence that it was given in proceedings of the ICC. Section 13(4) A certificate referred to in subsection (3) shall be admissible without proof of the signature or official character of the person by whom the certificate purports to be signed, if it purports to be signed by the Registrar of the ICC or...

Section 14. Fabricating evidence Section Every person who, with intent to mislead, fabricates anything with intent that it be used as evidence in any existing or proposed proceedings of the ICC, by any means other than perjury or incitement to perjury, is guilty of an offence and liable on conviction to imprisonment for a term of not more than seven years.

Section 15. Offences relating to affidavits Section signs a document that purports to be an affidavit or statutory declaration and to have been sworn or declared before him when the document was not so sworn or declared or when he knows that he has no authority to administer the oath or declaration;

Section 16. Intimidation Section for the purpose of compelling another person to abstain from doing anything that the person has a lawful right to do; or

Section 17. Retaliation against witnesses Section 17(1) A person who, by act or omission, does any thing against a person or a member of the person’s family in retaliation for the person’s having given testimony before the ICC is guilty of an offence and liable on conviction to imprisonment for a term of not more than five years. Section 17(2) A person who conspires or attempts to commit, or is an accessory after the fact in relation to, or counsels in relation to, an offence under subsection (1) is guilty of an offence and liable on conviction to imprisonment for a term of not more than five years.

Section 18. Jurisdiction to try offences undersections 9to 17 Section 18(1)(a) the act or omission constituting the offence is alleged to have been committed in Kenya or on board an aircraft or vessel which is registered in Kenya; or Section 18(1)(b) at the time the offence is alleged to have been committed, the person was a Kenyan citizen or was employed by Kenya in a civilian or military capacity; or Section 18(1)(c) the person is, after commission of the offence, present in Kenya. Section 18(2) A trial authorised by this section to be conducted in Kenya may be conducted in any court of competent jurisdiction.

Section 19. Co-operation as regards offences against administration of justice Section 19(1)(a) in the case of a request for surrender—in the manner provided in Parts III and IV, which Parts shall apply with any necessary modifications and subject to any contrary provision in the Rome Statute or the ICC Rules; Section 19(1)(b) in the case of a request for enforcement of an order requiring reparation or the payment of a fine or a forfeiture order—in the manner provided in Parts III and VI, which Parts shall apply with any necessary modifications and subject to any contrary provision in the Rome Statute or the ICC Rules; Section 19(1)(c) in the case of a request for transit—in the manner provided in sections 131 to 133 and 145 to 151, which sections shall apply with any necessary modifications and subject to any contrary provision in the Rome Statute or the ICC Rules; and Section 19(1)(d) in the case of a request for any other type of assistance—in the manner provided in Parts III and V, which Parts (and, if applicable, Part VIII) shall apply with any necessary modifications and subject to any contrary provision in the Rome Statute or the ICC Rules. Section 19(2) In addition to the g...

Section 20. Requests for assistance Section 20(1)(a) the provisional arrest, the arrest, and the surrender to the ICC of a person in relation to whom the ICC has issued an arrest warrant or given a judgment of conviction; Section 20(1)(a)(i) the provisional arrest, the arrest, and the surrender to the ICC of a person in relation to whom the ICC has issued an arrest warrant or given a judgment of conviction; Section 20(1)(a)(ii) the identification and whereabouts of persons or the location of items; Section 20(1)(a)(iii) the taking of evidence, including testimony under oath, and the production of evidence, expert opinions, and reports necessary to the ICC; Section 20(1)(a)(iv) the questioning of any person being investigated or prosecuted; Section 20(1)(a)(v) the service of documents, including judicial documents; Section 20(1)(a)(vi) facilitating the voluntary appearance of persons as witnesses or experts before the ICC; Section 20(1)(a)(vii) the temporary transfer of prisoners; Section 20(1)(a)(viii) the examination of places or sites, including the exhumation and examination of grave sites; Section 20(1)(a)(ix) the execution of searches and seizures; Section 20(1)(a)(x) the prov...

Section 21. Requests to be made through authorised channel Section 21(1)(a) in the case of a request to which Part IV applies, be transmitted to the Cabinet Secretary; or Section 21(1)(b) in any other case, be transmitted to the Director of Public Prosecutions or a person authorised by the Director of Public Prosecutions to receive requests. Section 21(2)(a) the diplomatic channel to the Cabinet Secretary responsible for foreign affairs; or Section 21(2)(b) any other appropriate channel that Kenya may designate at the time it ratifies the Rome Statute or at any subsequent time in accordance with the ICC Rules. Section 21(3) This section has effect subject to section 22 . [Cf: Rome Statute, articles 87(1)(a) and (b)] [Act No. 19 of 2023 , Sch.]

Section 22. Urgent requests Section 22(1)(a) made using any medium capable of delivering a written record; or Section 22(1)(b) transmitted through the International Criminal Police Organisation or any other appropriate regional organisation, instead of through an authorised channel (as defined in section 21 ). Section 22(2) If a request is made or transmitted in the first instance in the manner specified in subsection (1), it shall be followed as soon as practicable by a formal request transmitted in the manner specified in section 21 . [Cf. Rome Statute articles 87.1(b), 91(1), 96(1).]

Section 23. Execution of requests Section 23(1) If the ICC makes a request for assistance, the request shall be dealt with in accordance with the relevant procedure under the law of Kenya (as provided in this Act). Section 23(2) If the request for assistance specifies that it should be executed in a particular manner that is not prohibited by Kenyan law or by using a particular procedure that is not prohibited by Kenyan law, the Director of Public Prosecutions or the Cabinet Secretary, as the case may be, shall use his best endeavours to ensure that the request is executed in that manner or using that procedure, as the case may require. [Cf. Rome Statute articles 88, 99(1)] [Act No. 19 of 2023 , Sch.]

Section 24. Consultation Section 24(1)(a) a request for assistance is received from the ICC that does not contain or is not accompanied by the appropriate information or the appropriate documents specified in articles 87, 91, 92, 93, or 96 of the Rome Statute; Section 24(1)(b) the ICC has not provided sufficient information for a request for assistance to be executed; Section 24(1)(c) the person sought cannot be located in Kenya; or Section 24(1)(c)(i) the person sought cannot be located in Kenya; or Section 24(1)(c)(ii) it appears that the person in Kenya is clearly not the person named in the warrant or judgment, as the case may be; Section 24(1)(d) execution of a request for assistance in its current form would require the breach of an existing treaty obligation to another State; or Section 24(1)(e) for any other reason there are or may be difficulties with the execution of a request for assistance received from the ICC. Section 24(2)(a) subject to conditions; or Section 24(2)(b) at a later date or in an alternative manner. Section 24(3) Without limiting the types of conditions under which assistance may be provided, the Director of Public Prosecutions may agree to the transmiss...

Section 25. Confidentiality of request Section 25(1) A request for assistance and any documents supporting the request shall be kept confidential by the Kenyan authorities who deal with the request, except to the extent that the disclosure is necessary for execution of the request. Section 25(2) Without limiting the generality of subsection (1), if the ICC requests that particular information that is made available with a request for assistance be provided and handled in a manner that protects the safety and physical or psychological well-being of any victims, potential witnesses, and their families, the Kenyan authorities shall use their best endeavours to give effect to that request. Section 25(3)(a) the Director of Public Prosecutions; Section 25(3)(b) the Cabinet Secretary; Section 25(3)(c) every member of the National Police Service; Section 25(3)(d) every prison officer; and Section 25(3)(e) every employee of or contractor engaged by a Kenyan agency that is authorised to deal with the request.

Section 26. Response to be sent to ICC Section 26(1) The Director of Public Prosecutions or the Cabinet Secretary, as the case may be, shall notify the ICC, without delay, of his response to a request for assistance and of the outcome of any action that has been taken in relation to it. Section 26(2) If the Director of Public Prosecutions or the Cabinet Secretary decides, in accordance with the Rome Statute and this Act, to refuse or postpone the assistance requested, in whole or in part, the notice to the ICC shall set out the reasons for the decision. Section 26(3) If the request for assistance cannot be executed for any other reason, the notice to the ICC shall set out the reasons for the inability or failure to execute the request. Section 26(4) In the case of an urgent request for assistance, any documents or evidence produced in response shall, at the request of the ICC, be sent urgently to it. Section 26(5) Documents or evidence provided or produced in response to a request for assistance from the ICC shall be transmitted to the ICC in their original language and form. [Cf. Rome Statute, articles 86, 90(8), 93(6)] [Act No. 19 of 2023 , Sch.]

Section 27. Official capacity of person no bar to request Section 27(1)(a) refusing or postponing the execution of a request for surrender or other assistance by the ICC; Section 27(1)(b) holding that a person is ineligible for surrender, transfer, or removal to the ICC or another State under this Act; or Section 27(1)(c) holding that a person is not obliged to provide the assistance sought in a request by the ICC. Section 27(2) Subsection (1) shall have effect subject to sections 62 and 115 , but notwithstanding any other enactment or rule of law. [Cf. Rome Statute, article 27(2).]

Section 28. Request for arrest and surrender Section 28(1)(a) a person in respect of whom the Pre-Trial Chamber has issued a warrant of arrest under article 58 or article 60 of the Rome Statute for an international crime; or Section 28(1)(b) a person who has been convicted by the ICC of an international crime. Section 28(2) This Part shall apply to a request made under article 92 of the Rome Statute for the provisional arrest of a person accused or convicted of an international crime. Section 28(3)(a) arrest where a request for surrender is received ( sections 29 to 31); Section 28(3)(b) provisional arrest in urgent cases ( sections 32 to 34); Section 28(3)(c) remand and bail ( sections 35 to 38); Section 28(3)(d) eligibility for surrender ( sections 39 to 42); and Section 28(3)(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).

Section 29. Cabinet Secretary to request issue of arrest warrant Section 29(1) If a request for surrender is received, other than a request for provisional arrest referred to in section 28 (2), the Cabinet Secretary shall, if satisfied that the request is supported by the information and documents required by article 91 of the Rome Statute, notify a Judge of the High Court in writing that it has been made and request that the Judge issue a warrant for the arrest of the person whose surrender is sought. Section 29(2) If a notice is sent to a Judge under subsection (1), the Cabinet Secretary shall also send to the Judge a copy of the request and supporting documents. [Cf. Rome Statute, article 59(1).]

Section 30. Issue of arrest warrant Section 30(1)(a) the person is or is suspected of being in Kenya or may come to Kenya; and Section 30(1)(b) there are reasonable grounds to believe that that person is the person to whom the request for surrender from the ICC relates. Section 30(2) The Judge shall give reasons for the issue or refusal to issue a warrant under subsection (1).

Section 31. Cancellation of warrant Section 31(1) The Cabinet Secretary may at any time, apply to High Court for the cancellation of the warrant. Section 31(2) If under this section the High Court orders the cancellation of a warrant, the warrant ceases to have effect and any person arrested under the warrant shall be released, unless the person is otherwise liable to be detained in custody.

Section 32. Provisional arrest warrant Section 32(1)(a) a warrant for the arrest of a person has been issued by the ICC or, in the case of a convicted person, a judgment of conviction has been given in relation to an international crime; Section 32(1)(b) the person named in the warrant or judgment is or is suspected of being in Kenya or may come to Kenya; and Section 32(1)(c) it is necessary or desirable for an arrest warrant to be issued urgently. Section 32(2) A warrant may be issued under this section even though no request for surrender has yet been made or received from the ICC. [Cf. Rome Statute, article 92.]

Section 33. Notice to be given to Cabinet Secretary Section 33(1) If a Judge issues a provisional arrest warrant under section 32 , the applicant for the warrant shall report the issue of the warrant to the Cabinet Secretary without delay. Section 33(2) The applicant shall include in the report to the Cabinet Secretary a copy of the warrant issued by the ICC, or the judgment of conviction, as applicable, and the other documentary evidence that the applicant produced to the Judge.

Section 34. Procedure where provisional arrest warrant issued Section 34(1)(a) the hearing of the proceedings shall not proceed until the High Court receives from the Cabinet Secretary a notice in writing stating that a request for the surrender of the person has been transmitted to the Cabinet Secretary in the manner specified in section 21 ; Section 34(1)(b) pending the receipt of the notice from the Cabinet Secretary, the proceedings may from time to time be adjourned; Section 34(1)(c) any provision in the ICC Rules that prescribes the maximum period for transmission by the ICC of the request and supporting documents to the requested State; Section 34(1)(c)(i) any provision in the ICC Rules that prescribes the maximum period for transmission by the ICC of the request and supporting documents to the requested State; Section 34(1)(c)(ii) if there is no such provision, the time it is likely to take for the ICC to prepare and transmit the request and supporting documents to Kenya; Section 34(1)(c)(iii) the time it is likely to take for the Cabinet Secretary to consider the request after receipt and for the notice to be transmitted to the High Court; Section 34(1)(d) if the High Cour...

Section 35. Procedure following arrest Section 35(1) A person arrested on a warrant issued under section 30 or section 32 shall, unless sooner discharged, be brought before the High Court as soon as possible. Section 35(2)(a) is not entitled to bail as of right; and Section 35(2)(b) shall not be permitted to go at large without bail. Section 35(3) If the High Court remands the person on bail, the Court may impose any conditions of bail it thinks fit. Section 35(4)(a) the gravity of the alleged crimes; Section 35(4)(b) whether there are urgent and exceptional circumstances that favour the grant of bail; and Section 35(4)(c) whether necessary safeguards exist to ensure that Kenya can fulfil its duty under the Rome Statute to surrender the person to the ICC. Section 35(5) In making a decision to grant bail, the High Court shall not be concerned to inquire whether any warrant of arrest or judgment issued by the ICC was properly issued in accordance with the Rome Statute. [Cf. Rome Statute, article 59 (2) - (4).]

Section 36. Procedure for bail Section 36(1) If an application for bail is made, the Cabinet Secretary shall notify the ICC, which may make recommendations to the Cabinet Secretary, which shall be conveyed to the High Court. Section 36(2) Before rendering its decision, the High Court shall consider any recommendations that the ICC has made, including any recommendations on measures to prevent the escape of the person. Section 36(3) If the person is granted bail, the Cabinet Secretary shall, if the ICC requests, provide periodic reports to the ICC on the person’s bail status. Section 36(4) This section shall apply, with any necessary modifications, to any bail application made during the period until the person is surrendered to the ICC or discharged according to law. [Cf. Rome Statute, article 59(2) - (6).]

Section 37. Powers of High Court Section In proceedings under this Part, except as expressly provided in this Act or in regulations made under this Act, the High Court shall have the same jurisdiction and powers, and shall conduct the proceedings in the same manner, as if the person were charged with an offence alleged to have been committed within Kenyan jurisdiction.

Section 38. Detention in place other than prison Section 38(1) This section shall apply where the High Court orders the detention of a person at any time under this Part. Section 38(2)(a) at the place where the person is for the time being; or Section 38(2)(b) at any other place that the Court considers appropriate, having regard to the risk or reason involved. Section 38(3)(a) the person can be detained in a prison without risk to that person’s life or health; Section 38(3)(b) the reason for not detaining the person in prison no longer applies; or Section 38(3)(c) the person is surrendered or discharged according to law. Section 38(4) In making the order specified in subsection (2), the High Court shall have regard to any recommendations that the ICC may make regarding the place of the person’s detention. [Cf. Rome Statute, article 59(5).]

Section 39. Determination of eligibility for surrender Section 39(1) If a person is brought before a High Court under this Part, the Court shall determine whether the person is eligible for surrender in relation to the international crime or crimes for which surrender is sought. Section 39(2) Subsection (1) shall have effect subject to sections 34 and 41 . Section 39(3)(a) a warrant for the arrest of the person issued by the ICC or a judgment of conviction for an international crime given by the ICC has been produced to the High Court; Section 39(3)(b) the Court is satisfied that the person is the person to whom the warrant or judgment relates; Section 39(3)(c) the Court is satisfied that the person was arrested in accordance with the proper process as provided in paragraph 2(b) of article 59 of the Rome Statute; and Section 39(3)(d) the Court is satisfied that the person’s rights were respected as provided in paragraph 2(c) of article 59 of the Rome Statute. Section 39(4) Neither subsection (3)(c) nor subsection (3)(d) shall apply unless the person concerned puts the matter at issue. Section 39(5) Notwithstanding subsection (3), the person is not eligible for surrender if he satis...

Section 40. Adjournment of hearing Section 40(1)(a) a document or documents containing a deficiency or deficiencies of relevance to the proceedings are produced; and Section 40(1)(b) the High Court considers the deficiency or deficiencies to be of a minor character. Section 40(2) Subsection (1) does not limit the circumstances in which the High Court may adjourn a hearing.

Section 41. Surrender by consent Section 41(1) A person may at any time notify the High Court that he consents to being surrendered to the ICC for the international crime or crimes for which his surrender is sought. Section 41(2)(a) the person is before the Court when notification of the consent to surrender is given; Section 41(2)(b) the person has been legally represented in the proceedings; and Section 41(2)(c) the Court is satisfied that the person has freely consented to the surrender in full knowledge of its consequences. Section 41(3) Nothing in this Part prevents a person, in respect of whom a determination of eligibility for surrender is made by the High Court under section 39 , from subsequently notifying the Cabinet Secretary that he consents to surrender. Section 41(4)(a) the Cabinet Secretary may make a surrender order as if a request for surrender had been received; and Section 41(4)(b) section 34 (1)(a) shall not apply.

Section 42. Procedure following determination on eligibility or consent to surrender Section 42(1)(a) the High Court has determined in accordance with section 39 that a person is eligible for surrender; or Section 42(1)(b) a person has consented to surrender to the ICC in accordance with section 41 . Section 42(2)(a) issue a warrant for the detention of the person in a prison or other place authorised in accordance with section 38 , pending the surrender of the person to the ICC or his discharge according to law; Section 42(2)(b) send to the Cabinet Secretary a copy of the warrant of detention and such report on the case as the court thinks fit; Section 42(2)(c) subject to section 65 , the person will not be surrendered until the expiration of fifteen days after the date of the issue of the warrant; Section 42(2)(c)(i) subject to section 65 , the person will not be surrendered until the expiration of fifteen days after the date of the issue of the warrant; Section 42(2)(c)(ii) during that time the person has the right to make an application for a writ of habeas corpus ; and Section 42(2)(c)(iii) the person has the right to lodge an appeal under section 63 ; Section 42(2)(d) inform...

Section 43. Cabinet Secretary to determine whether person to be surrendered Section 43(1) If the High Court issues a warrant for the detention of a person under section 42 , the Cabinet Secretary shall determine whether to order that the person be surrendered, giving reasons to the High Court for any refusal to order surrender. Section 43(2)(a) the Cabinet Secretary is satisfied that surrender of the person must be refused because a mandatory restriction on surrender specified in section 51 (1) applies; Section 43(2)(b) the Cabinet Secretary is satisfied that one of the discretionary restrictions on surrender specified in section 51 (2) applies and that it is appropriate in the circumstances that surrender be refused; Section 43(2)(c) the Cabinet Secretary postpones the execution of a request for surrender in accordance with section 52 ; or Section 43(2)(d) the Cabinet Secretary makes a temporary surrender order under section 45 . Section 43(3)(a) until the expiration of fifteen days after the date of the issue of the warrant of detention of that person under section 42 (2)(a); or Section 43(3)(b) if an appeal, or an application for review or habeas corpus in respect of a determina...

Section 44. Surrender order may take effect at later date Section 44(1) This section shall apply if the Cabinet Secretary has determined under section 43 that in all other respects it is appropriate to make a surrender order, but the person is liable to be detained in a prison because of a sentence of imprisonment imposed for a different offence against the law of Kenya. Section 44(2) If this section applies, the Cabinet Secretary may, after consultation with the ICC, instead of making a surrender order that has immediate effect, or a temporary surrender order under section 45 , make an order for the surrender of the person that is to come into effect when the person ceases to be liable to be detained. [Cf. Rome Statute, article 89(4).]

Section 45. Temporary surrender to ICC Section 45(1)(a) the request by the ICC for surrender relates to an international crime of which the person is accused; Section 45(1)(b) the subject of proceedings for a different offence against Kenyan law that has not been finally disposed of; or Section 45(1)(b)(i) the subject of proceedings for a different offence against Kenyan law that has not been finally disposed of; or Section 45(1)(b)(ii) liable to be detained in a prison because of a sentence of imprisonment imposed for a different offence against the law of Kenya; and Section 45(1)(c) after consultation by the Cabinet Secretary with the ICC, the ICC requests that the person be surrendered temporarily. Section 45(2) The Cabinet Secretary may make a temporary surrender order in respect of the person concerned. Section 45(3)(a) the return of the person to Kenya; Section 45(3)(b) the custody of the person while travelling to and from and while in the ICC’s jurisdiction; Section 45(3)(c) such other matters, if any, that the Cabinet Secretary thinks appropriate.

Section 46. Decision to return to Kenya after trial Section 46(1) The Cabinet Secretary shall review whether it is appropriate for a person who has been surrendered to the ICC under a temporary surrender order to be returned to Kenya in accordance with undertakings received from the ICC, if the person is convicted by the ICC of an international crime and sentenced to imprisonment. Section 46(2) The Cabinet Secretary may determine that he no longer requires the undertaking relating to return to be complied with and, if so, shall inform the ICC without delay.

Section 47. Request to return to ICC after temporary surrender Section 47(1)(a) the person has been convicted by the ICC of an international crime and sentenced to imprisonment; Section 47(1)(b) the person is returned to Kenya in order for the Kenyan proceedings or sentence to be completed; and Section 47(1)(c) the ICC, at any time before the person ceases to be the subject of Kenyan proceedings or ceases to be liable to be detained in a Kenyan prison, requests that, when he ceases to be the subject of such proceedings or ceases to be so liable, the person be surrendered to serve the sentence imposed by the ICC. Section 47(2) An order under subsection (1) shall not be made unless the Cabinet Secretary has determined, in accordance with section 43 , that the person is to be surrendered. Section 47(3) If a surrender order is made under this section, the order takes effect on the same day that the person ceases to be subject to the Kenyan proceedings or ceases to be liable to be detained in a Kenyan prison.

Section 48. Kenyan sentences continue to run Section 48(1) If a person who is subject to a sentence of imprisonment is released from a Kenyan prison under a surrender order made under section 43 or a temporary surrender order made under section 45 , the person shall be treated, while in custody in connection with the request or the crime to which the request related, as the case may be (including custody outside Kenya), as being in custody for the purposes of the Kenyan sentence, which, subject to subsection (3), shall continue to run. Section 48(2) If, while a person is within the jurisdiction of the ICC under a temporary surrender order or surrender order, the person ceases to be liable to be detained in a Kenyan prison, the Cabinet Secretary shall inform the ICC that any undertakings relating to custody referred to in section 45 (3)(a) and section 45 (3)(b) no longer need to be complied with. Section 48(3) Nothing in this section affects the ICC’s power to direct that any sentence of imprisonment that it imposes shall be cumulative on a sentence imposed under Kenyan law.

Section 49. Form and execution of surrender order or temporary surrender order Section specify all the international crimes in relation to which the person is being surrendered;

Section 50. Surrender to State of enforcement Section 50(1) If a request for surrender relates to a convicted person who has escaped from custody and the ICC directs, under article 111 of the Rome Statute, that the person be delivered to the State in which the person was serving the sentence or to any other State designated by the ICC, the Cabinet Secretary shall arrange for the person to be delivered to the State specified in the direction. Section 50(2) In any case in which subsection (1) applies, the surrender order may specify that the person be surrendered into the custody of duly authorised representatives of the State specified in the direction. [Cf. Rome Statute, article 111.]