PART III—GENERAL PROVISIONS RELATING TO REQUESTS FOR ASSISTANCE

20. (1) This Part shall apply to a request by the ICC

for assistance that is made under—
(a) Part 9 of the Rome Statute, in relation to—
(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;
(ii) the identification and whereabouts of persons or the location of items;
(iii) the taking of evidence, including testimony under oath, and the production of evidence, expert opinions, and reports necessary to the
ICC;
(iv) the questioning of any person being investigated or prosecuted;
(v) the service of documents, including judicial documents;
(vi) facilitating the voluntary appearance of persons as witnesses or experts before the
ICC;
(vii) the temporary transfer of prisoners;
(viii) the examination of places or sites, including the exhumation and examination of grave sites;
(ix) the execution of searches and seizures;
(x) the provision of records and documents, including official records and documents;
(xi) the protection of victims and witnesses and the preservation of evidence;
(xii) the identification, tracing and freezing, or seizure of proceeds, property and assets, and

instrumentalities of crimes for the purpose of eventual forfeiture, without prejudice to the rights of bona fide third parties; or
(xiii) any other type of assistance that is not prohibited by the law of Kenya, with a view to facilitating the investigation and prosecution of crimes within the jurisdiction of the ICC; or
(b) any of the following provisions of the Rome Statute—
(i) paragraph 8 of article 19 (which relates to various steps that the Prosecutor may take with the authority of the ICC);
(ii) article 56 (which relates to various measures that can be taken by the Pre-Trial Chamber);
(iii) article 64 (which relates to various measures that can be taken by the Trial Chamber);
(iv) article 76 (which relates to the imposition of sentence by the Trial Chamber);
(v) article 109 (which relates to the enforcement of fines and forfeiture measures).

(2) Nothing in this section—
(a) limits the type of assistance that the ICC may request under the Rome Statute or the ICC Rules (whether in relation to the provision of information or otherwise); or
(b) prevents the provision of assistance to the ICC otherwise than under this Act, including assistance of an informal nature.

PART III—GENERAL PROVISIONS RELATING TO REQUESTS FOR ASSISTANCE

26. (1) The Attorney-General or the Minister, 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.
(2) If the Attorney-General or the Minister 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.
(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.
(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.

(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.

PART III—GENERAL PROVISIONS RELATING TO REQUESTS FOR ASSISTANCE

27. (1) The existence of any immunity or special procedural rule attaching to the official capacity of any person shall not constitute a ground for—
(a) refusing or postponing the execution of a request
for surrender or other assistance by the ICC;
(b) holding that a person is ineligible for surrender, transfer, or removal to the ICC or another State under this Act; or
(c) holding that a person is not obliged to provide the assistance sought in a request by the ICC.

(2) Subsection (1) shall have effect subject to sections 62 and 115, but notwithstanding any other enactment or rule of law.

Article 86
General obligation to cooperate
States Parties shall, in accordance with the provisions of this Statute, cooperate fully with the Court in its investigation and prosecution of crimes within the jurisdiction of the Court.

Article 88
Availability of procedures under national law
States Parties shall ensure that there are procedures available under their national law for
all of the forms of cooperation which are specified under this Part.

Article 93
Other forms of cooperation
1. States Parties shall, in accordance with the provisions of this Part and under procedures of
national law, comply with requests by the Court to provide the following assistance in relation to
investigations or prosecutions:
(a) The identification and whereabouts of persons or the location of items;
(b) The taking of evidence, including testimony under oath, and the production of
evidence, including expert opinions and reports necessary to the Court;
(c) The questioning of any person being investigated or prosecuted;
(d) The service of documents, including judicial documents;
(e) Facilitating the voluntary appearance of persons as witnesses or experts before the
Court;
(f) The temporary transfer of persons as provided in paragraph 7;
(g) The examination of places or sites, including the exhumation and examination of
grave sites;
(h) The execution of searches and seizures;
(i) The provision of records and documents, including official records and
documents;
(j) The protection of victims and witnesses and the preservation of evidence;
(k) The identification, tracing and freezing or seizure of proceeds, property and assets
and instrumentalities of crimes for the purpose of eventual forfeiture, without prejudice to the
rights of bona fide third parties; and
(l) Any other type of assistance which is not prohibited by the law of the requested
State, with a view to facilitating the investigation and prosecution of crimes within the jurisdiction
of the Court.
2. The Court shall have the authority to provide an assurance to a witness or an expert
appearing before the Court that he or she will not be prosecuted, detained or subjected to any
restriction of personal freedom by the Court in respect of any act or omission that preceded the
departure of that person from the requested State.
3. Where execution of a particular measure of assistance detailed in a request presented
under paragraph 1, is prohibited in the requested State on the basis of an existing fundamental
legal principle of general application, the requested State shall promptly consult with the Court to
try to resolve the matter. In the consultations, consideration should be given to whether the
assistance can be rendered in another manner or subject to conditions. If after consultations the
matter cannot be resolved, the Court shall modify the request as necessary.
4. In accordance with article 72, a State Party may deny a request for assistance, in whole or
in part, only if the request concerns the production of any documents or disclosure of evidence
which relates to its national security.
5. Before denying a request for assistance under paragraph 1 (l), the requested State shall
consider whether the assistance can be provided subject to specified conditions, or whether the
assistance can be provided at a later date or in an alternative manner, provided that if the Court or
the Prosecutor accepts the assistance subject to conditions, the Court or the Prosecutor shall abide
by them.
6. If a request for assistance is denied, the requested State Party shall promptly inform the
Court or the Prosecutor of the reasons for such denial.
7. (a) The Court may request the temporary transfer of a person in custody for purposes
of identification or for obtaining testimony or other assistance. The person may be transferred if
the following conditions are fulfilled:
(i) The person freely gives his or her informed consent to the transfer; and
(ii) The requested State agrees to the transfer, subject to such conditions as that
State and the Court may agree.
(b) The person being transferred shall remain in custody. When the purposes of the
transfer have been fulfilled, the Court shall return the person without delay to the requested State.
8. (a) The Court shall ensure the confidentiality of documents and information, except as
required for the investigation and proceedings described in the request.
(b) The requested State may, when necessary, transmit documents or information to
the Prosecutor on a confidential basis. The Prosecutor may then use them solely for the purpose of
generating new evidence.
(c) The requested State may, on its own motion or at the request of the Prosecutor,
subsequently consent to the disclosure of such documents or information. They may then be used
as evidence pursuant to the provisions of Parts 5 and 6 and in accordance with the Rules of
Procedure and Evidence.
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.
(ii) Failing that, competing requests shall be resolved in accordance with the
principles established in article 90.
(b) Where, however, the request from the Court concerns information, property or
persons which are subject to the control of a third State or an international organization by virtue
of an international agreement, the requested States shall so inform the Court and the Court shall
direct its request to the third State or international organization.
10. (a) The Court may, upon request, cooperate with and provide assistance to a State
Party conducting an investigation into or trial in respect of conduct which constitutes a crime
within the jurisdiction of the Court or which constitutes a serious crime under the national law of
the requesting State.
(b) (i) The assistance provided under subparagraph (a) shall include, inter alia:
a. The transmission of statements, documents or other types of
evidence obtained in the course of an investigation or a trial
conducted by the Court; and
b. The questioning of any person detained by order of the Court;
(ii) In the case of assistance under subparagraph (b) (i) a:
a. If the documents or other types of evidence have been obtained
with the assistance of a State, such transmission shall require the
consent of that State;
b. If the statements, documents or other types of evidence have been
provided by a witness or expert, such transmission shall be subject
to the provisions of article 68.
(c) The Court may, under the conditions set out in this paragraph, grant a request for
assistance under this paragraph from a State which is not a Party to this Statute.