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

Restrictions on Provision of Assistance

114. (1) If the Attorney-General receives competingrequests for assistance from the ICC and from another State to which Kenya is under an obligation to respond, he shall endeavour, after consultation with the ICC and the other State, to satisfy both requests.

Article 90
Competing requests
1. A State Party which receives a request from the Court for the surrender of a person under
article 89 shall, if it also receives a request from any other State for the extradition of the same
person for the same conduct which forms the basis of the crime for which the Court seeks the
person’s surrender, notify the Court and the requesting State of that fact.
2. Where the requesting State is a State Party, the requested State shall give priority to the
request from the Court if:
(a) The Court has, pursuant to article 18 or 19, made a determination that the case in
respect of which surrender is sought is admissible and that determination takes into account the
investigation or prosecution conducted by the requesting State in respect of its request for
extradition; or
(b) The Court makes the determination described in subparagraph (a) pursuant to the
requested State’s notification under paragraph 1.
3. Where a determination under paragraph 2 (a) has not been made, the requested State may,
at its discretion, pending the determination of the Court under paragraph 2 (b), proceed to deal
with the request for extradition from the requesting State but shall not extradite the person until the
Court has determined that the case is inadmissible. The Court’s determination shall be made on an
expedited basis.
4. If the requesting State is a State not Party to this Statute the requested State, if it is not
under an international obligation to extradite the person to the requesting State, shall give priority
to the request for surrender from the Court, if the Court has determined that the case is admissible.
5. Where a case under paragraph 4 has not been determined to be admissible by the Curt, the
requested State may, at its discretion, proceed to deal with the request for extradition from the
requesting State.
6. In cases where paragraph 4 applies except that the requested State is under an existing
international obligation to extradite the person to the requesting State not Party to this Statute, the
requested State shall determine whether to surrender the person to the Court or extradite the
person to the requesting State. In making its decision, the requested State shall consider all the
relevant factors, including but not limited to:
(a) The respective dates of the requests;
(b) The interests of the requesting State including, where relevant, whether the crime
was committed in its territory and the nationality of the victims and of the person sought; and
(c) The possibility of subsequent surrender between the Court and the requesting
State.
7. Where a State Party which receives a request from the Court for the surrender of a person
also receives a request from any State for the extradition of the same person for conduct other than
that which constitutes the crime for which the Court seeks the person’s surrender:
(a) The requested State shall, if it is not under an existing international obligation to
extradite the person to the requesting State, give priority to the request from the Court;
(b) The requested State shall, if it is under an existing international obligation to
extradite the person to the requesting State, determine whether to surrender the person to the Court
or to extradite the person to the requesting State. In making its decision, the requested State shall
consider all the relevant factors, including but not limited to those set out in paragraph 6, but shall
give special consideration to the relative nature and gravity of the conduct in question.
8. Where pursuant to a notification under this article, the Court has determined a case to be
inadmissible, and subsequently extradition to the requesting State is refused, the requested State
shall notify the Court of this decision.

Article 93
Other forms of cooperation
9. (a) (i) In the event that a State Party receives competing requests, other than for surrender or extradition, from the Court and from another State pursuant to an international obligation, the State Party shall endeavour, in consultation with the Court and the other State, to meet both requests, if necessary by postponing or attaching conditions to one or the other request.

Article 97
Consultations
Where a State Party receives a request under this Part in relation to which it identifies
problems which may impede or prevent the execution of the request, that State shall consult with
the Court without delay in order to resolve the matter. Such problems may include, inter alia:
(a) Insufficient information to execute the request;
(b) In the case of a request for surrender, the fact that despite best efforts, the person
sought cannot be located or that the investigation conducted has determined that the person in the
requested State is clearly not the person named in the warrant; or
(c) The fact that execution of the request in its current form would require the
requested State to breach a pre-existing treaty obligation undertaken with respect to another State.