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PART I—PRELIMINARY
Offences Against Administration of Justice
19. (2) In addition to the grounds of refusal or postponement specified in Parts IV and V, a request for surrender or other assistance that relates to an offence involving the administration of justice may be refused if, in the opinion of the Minister or the Attorney-General, as the case may be, there are exceptional circumstances that would make it unjust or oppressive to surrender the person or give the assistance requested.
PART III—GENERAL PROVISIONS RELATING TO REQUESTS FOR ASSISTANCE
26.
(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.
PART IV—ARREST AND SURRENDER OF PERSONS TO ICC
Restrictions on Surrender
52. (1) The Minister may postpone the execution of a request for surrender under this Part at any time before the person sought is surrendered if, and only if -
(a) a ruling on admissibility of the kind specified in section 53 (1) or section 55 (1) or section 56 is pending before the ICC;
(b) the request would interfere with an investigation or prosecution for a different offence against Kenyan law, as provided in section 54; or
(c) a request of the kind referred to in section 62 (1) (c) is made to the ICC.
(2) Even if a case is one to which subsection (1) applies, the Minister may decide not to postpone the execution of the request; and, in that event, the Minister may take such steps under this Part as may be appropriate in the circumstances, including making a surrender order with immediate effect under section 43 or with effect at a later date under section 44 or a temporary surrender order under section 45.
(3) If the Minister postpones the execution of the request, the postponement may be for a reasonable time and may, if the Minister considers it desirable, be extended from time to time.
(4) A decision by the Minister to postpone the execution of a request—
(a) does not limit or affect—
(i) the High Court's ability to accept notification of consent to the surrender;
(ii) the ability to continue to detain a person under any warrant issued under this Part; and
(b) does not affect the validity of any act that has been done or any warrant or order made under this Part before the decision was made.
(5) If no decision on the execution of the request for surrender is made within six months after the date of the Minister's decision to postpone the execution of the request, the person may apply to a Judge of the High Court to be discharged.
(6) If an application to be discharged is made under subsection (5), the Judge may, on proof that reasonable notice of the intention to make the application has been given to the Minister, unless sufficient cause is shown against the discharge—
(a) discharge any order made under this Act; and
(b) order the discharge of the person from the place where the person is detained, if the person is not liable to be detained under any other order for detention.
PART IV—ARREST AND SURRENDER OF PERSONS TO ICC
Restrictions on Surrender
55. (1) This section shall apply if—
(a) the ICC makes a request for surrender;
(b) the request relates to conduct that would constitute an offence under Kenyan law;
(c) either—
(i) the conduct is being investigated or prosec¬uted in Kenya; or
(ii) the conduct had been investigated in Kenya and a decision was made not to prosecute the person sought, that decision not being due to
the unwillingness or genuine inability to prosecute; and
(d) a challenge to the admissibility of the case is being or has been made to the ICC under paragraph 2 (b) of article 19 of the Rome Statute.
(2) If this section applies, the Minister may postpone the execution of the request for surrender until the ICC has made its determination on admissibility.
PART IV—ARREST AND SURRENDER OF PERSONS TO ICC
Restrictions on Surrender
55.
(4) If the ICC determines that the case is admissible and there is no other ground for refusing or postponing the request, the request shall continue to be dealt with under this Part.
PART IV—ARREST AND SURRENDER OF PERSONS TO ICC
Restrictions on Surrender
56. (1) If the ICC is considering an admissibility challenge under article 18 or article 19 of the Rome Statute, other than a challenge of the kind referred to in section 53 or section 55, the Minister may postpone the execution of a request under this Part pending a determination by the ICC.
PART IV—ARREST AND SURRENDER OF PERSONS TO ICC
Restrictions on Surrender
62. (1) Where—
(a) the ICC makes a request for surrender;
(b) the ICC has not previously made a final deter¬mination on whether or not article 98 of the Rome Statute applies to that request; and
(c) a request is made to the ICC to determine whether or not article 98 of the Rome Statute applies to the request for surrender,
the Minister may postpone the request for surrender until the ICC advises whether or not it intends to proceed with the request for surrender.
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—
(a) the execution of the request would interfere with
an ongoing investigation or prosecution for a different offence and section 112 applies;
(b) a ruling on admissibility is pending before the ICC and section 113 applies;
(c) there are competing requests from the ICC and from another State to which Kenya is under an international obligation and section 114 (2) (a) applies;
(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
(e) a request of the kind referred to in section 115 (2) (c) is made to the ICC.
(2) Even if a case is one to which subsection (1) applies, the Attorney-General may decide not to postpone the execution of the request, and in that event the request shall be dealt with in accordance with this Part.
(3) If the Attorney-General postpones the execution of a request for assistance under this Part, the postponement may be for a reasonable time and may, if the Attorney-General considers it desirable, be extended from time to time.
PART V—DOMESTIC PROCEDURES FOR OTHER TYPES OF CO-OPERATION
Restrictions on Provision of Assistance
112. (1) If the immediate execution of a request by the ICC for assistance to which this Part applies would interfere with an ongoing investigation or prosecution of a case different from that to which the request relates, the Attorney-General may postpone the execution of the request for a period of time agreed between him and the ICC.
(2) Notwithstanding section 110 (3), the period of postponement may be no longer than is reasonably necessary to complete the investigation or prosecution.
(2) Before making a decision to postpone the execution of a request, the Attorney-General shall consider whether the assistance could be provided immediately subject to certain conditions.
(4) If the Attorney-General decides to postpone the execution of a request and the ICC seeks assistance in the preservation of evidence under paragraph 1 (j) of article 93 of the Rome Statute, he shall deal with that request in accordance with this Part.
113. (1) This section shall apply if the ICC is considering an admissibility challenge under article 18 or article 19 of the Rome Statute in respect of a case that a request to which this Part applies relates.
(2) If the ICC has not made an order under article 18 or article 19 of the Rome Statute allowing the Prosecutor to collect evidence to which the request relates, the Attorney-General may postpone the execution of the request until the ICC's determination on admissibility is issued.
(3) If the ICC has made an order under article 18 or
article 19 of the Rome Statute allowing the Prosecutor to collect evidence to which the request relates, the Attorney-General may not postpone the execution of a request under this section but shall deal with it under this Part.
(4) If the ICC determines that the case to which the request relates is inadmissible, the request shall be refused.
(5) If the ICC determines that the case to which the request relates is admissible, and there is no other ground for refusing or postponing the request, the request shall continue to be dealt with under this Part.
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.
(2) For the purposes of subsection (1), the Attorney-General may do either or both of the following—
(a) postpone the execution of either of the competing requests;
(b) attach conditions to the provision of assistance under either or both of the requests.
(3) If it is not possible to resolve the issue by consultation, the method of dealing with the competing requests shall be resolved in accordance with article 90 of the Rome Statute, and sections 57 to 61 shall apply, with any necessary modifications.
PART V—DOMESTIC PROCEDURES FOR OTHER TYPES OF CO-OPERATION
Restrictions on Provision of Assistance
115. (1) Ifa request by the ICC for assistance to which this Part applies concerns persons who, or information or property that, are subject to the control of another State or an international organisation under an international agreement, the Attorney-General shall inform the ICC to enable it to direct its request to the other State or international organisation.
(2) Where—
(a) the ICC makes a request for assistance;
(b) the ICC has not previously made a final determination on whether or not paragraph 1 of article 98 of the Rome Statute applies to that request; and
(c) a request is made to the ICC to determine whether or not paragraph 1 of article 98 applies to the request for surrender,
the Minister may postpone the request for assistance until the ICC advises whether or not it wishes to proceed with the request for assistance.
(4) (3) If the ICC advises that it does not intend to proceed with the request, the request for assistance shall be refused.
(5) (4) If the ICC advises that it intends to proceed with the request for assistance, and there is no other ground for refusing or postponing the request, the request shall continue to be dealt with under this Part.
PART V—DOMESTIC PROCEDURES FOR OTHER TYPES OF CO-OPERATION
Miscellaneous
116. At any time before a formal response is sent to the ICC, the Attorney-General may decide that a request by the ICC for assistance to which this Part applies will be refused or the execution of the request postponed, on a ground specified in section 109 or section 110, even if he has previously given authority for the request to proceed.
Article 94
Postponement of execution of a request in respect of ongoing investigation or prosecution
1. If the immediate execution of a request would interfere with an ongoing investigation or prosecution of a case different from that to which the request relates, the requested State may postpone the execution of the request for a period of time agreed upon with the Court. However, the postponement shall be no longer than is necessary to complete the relevant investigation or prosecution in the requested State. Before making a decision to postpone, the requested State should consider whether the assistance may be immediately provided subject to certain conditions.
2. If a decision to postpone is taken pursuant to paragraph 1, the Prosecutor may, however, seek measures to preserve evidence, pursuant to article 93, paragraph 1 (j).
Article 95
Postponement of execution of a request in respect of an admissibility challenge
Where there is an admissibility challenge under consideration by the Court pursuant to article 18 or 19, the requested State may postpone the execution of a request under this Part pending a determination by the Court, unless the Court has specifically ordered that the Prosecutor may pursue the collection of such evidence pursuant to article 18 or 19.