PART VIII—PROTECTION OF NATIONAL SECURITY OR THIRD PARTY INFORMATION

National Security

155. (1) If, in any circumstances other than those specified in sections 153 and 154, the Attorney-General is of the opinion that the disclosure of information or documents to the ICC would prejudice Kenya's national security interests, the matter shall be dealt with in accordance with the process specified in sections 156 and 157.
(2) Without limiting subsection (1), this section shall apply if the Attorney-General learns that information or documents are being, or are likely to be, disclosed at any stage of the proceedings, and intervenes in accordance with paragraph 4 of article 72 of the Rome Statute.
(3) If, having followed the specified process, the matter has not been resolved and the ICC has not made an order for disclosure under paragraph 7 (b) (i) of article 72 of the Rome Statute, the Attorney-General may refuse the request or decline to authorise the provision of the information or giving of the evidence, as the case may be.

156. The Attorney-General shall consult with the ICC and, if appropriate, the defence, in accordance with paragraph 5 of article 72 of the Rome Statute.

157. (1) If, after consultation, the Attorney-General considers that there are no means or conditions under which the information or documents or evidence could be provided or disclosed or given without prejudice to Kenya's national security interests, he shall notify the ICC, in accordance with paragraph 6 of article 72 of the Rome Statute, of the specific reasons for his decision, unless a specific description of the reasons would result itself in prejudice to Kenya's national security interests.

(2) The Attorney-General shall use his best endeavours with a view to reaching a mutually satisfactory outcome if—
(a) the ICC determines that the evidence is relevant and necessary for the establishment of the guilt or innocence of the accused;
(b) the issue of disclosure arises in the circumstances specified in section 153 or section 154 and the Attorney-General is of the opinion that Kenya's national security interests would be prejudiced by disclosure; and
(c) the ICC requests further consultations for the purpose of considering the representations, which may include hearings in camera and ex parte.

(3) The Attorney-General shall comply with an ICC disclosure order if—
(a) the ICC determines that the evidence is relevant and necessary for the establishment of the guilt or innocence of the defendant;
(b) the issue of disclosure arises in the circumstances specified in section 155 (1); and
(c) the ICC orders disclosure in accordance with paragraph 7 (b) (i) of article 72 of the Rome Statute.

158. In determining what action to take in relation to a matter to which this Part applies, the Attorney-General shall take into account the power of the ICC to refer a matter to the Assembly of States Parties or to the Security Council in accordance with paragraph 7 of article 87 of the Rome Statute if the ICC considers that a requested State is not acting in accordance with its obligations under the Rome Statute.

PART VIII—PROTECTION OF NATIONAL SECURITY OR THIRD PARTY INFORMATION

Information Provided by Third Parties

159. (1) If the ICC requests the provision of a document or information that was provided or disclosed to Kenya in confidence by another State, intergovernmental organisation, or international organisation, the Attorney-General shall seek the consent of the originator before providing that document or information to the ICC.

(2) If the originator is a State Party that consents to disclosure of the information or document, the Attorney-General shall, subject to article 72 of the Rome Statute, provide that information or document to the ICC.

(3) If the originator is a State Party that undertakes to resolve the issue of disclosure with the ICC under article 73, the Attorney-General shall inform the ICC of that undertaking.

(4) If the originator is not a State Party and refuses to consent to disclosure, the Attorney-General shall inform the ICC that he is unable to provide the document or information because of an existing obligation of confidentiality to the originator.

Article 72
Protection of national security information
1. This article applies in any case where the disclosure of the information or documents of a State would, in the opinion of that State, prejudice its national security interests. Such cases include those falling within the scope of article 56, paragraphs 2 and 3, article 61, paragraph 3, article 64, paragraph 3, article 67, paragraph 2, article 68, paragraph 6, article 87, paragraph 6 and article 93, as well as cases arising at any other stage of the proceedings where such disclosure may be at issue.
2. This article shall also apply when a person who has been requested to give information or evidence has refused to do so or has referred the matter to the State on the ground that disclosure would prejudice the national security interests of a State and the State concerned confirms that it is of the opinion that disclosure would prejudice its national security interests.
3. Nothing in this article shall prejudice the requirements of confidentiality applicable under article 54, paragraph 3 (e) and (f), or the application of article 73.
4. If a State learns that information or documents of the State are being, or are likely to be, disclosed at any stage of the proceedings, and it is of the opinion that disclosure would prejudice its national security interests, that State shall have the right to intervene in order to obtain resolution of the issue in accordance with this article.
5. If, in the opinion of a State, disclosure of information would prejudice its national security interests, all reasonable steps will be taken by the State, acting in conjunction with the Prosecutor, the defence or the Pre-Trial Chamber or Trial Chamber, as the case may be, to seek to resolve the matter by cooperative means. Such steps may include:
(a) Modification or clarification of the request;
(b) A determination by the Court regarding the relevance of the information or evidence sought, or a determination as to whether the evidence, though relevant, could be or has been obtained from a source other than the requested State;
(c) Obtaining the information or evidence from a different source or in a different form; or
(d) Agreement on conditions under which the assistance could be provided including, among other things, providing summaries or redactions, limitations on disclosure, use of in camera or ex parte proceedings, or other protective measures permissible under the Statute and the Rules of Procedure and Evidence.
6. Once all reasonable steps have been taken to resolve the matter through cooperative means, and if the State considers that there are no means or conditions under which the information or documents could be provided or disclosed without prejudice to its national security interests, it shall so notify the Prosecutor or the Court of the specific reasons for its decision, unless a specific description of the reasons would itself necessarily result in such prejudice to the State's national security interests.
7. Thereafter, if the Court determines that the evidence is relevant and necessary for the establishment of the guilt or innocence of the accused, the Court may undertake the following actions:
(a) Where disclosure of the information or document is sought pursuant to a request for cooperation under Part 9 or the circumstances described in paragraph 2, and the State has invoked the ground for refusal referred to in article 93, paragraph 4:
(i) The Court may, before making any conclusion referred to in subparagraph 7 (a) (ii), request further consultations for the purpose of considering the State's representations, which may include, as appropriate, hearings in camera and ex parte;
(ii) If the Court concludes that, by invoking the ground for refusal under article 93, paragraph 4, in the circumstances of the case, the requested State is not acting in accordance with its obligations under this Statute, the Court may refer the matter in accordance with article 87, paragraph 7, specifying the reasons for its conclusion; and
(iii) The Court may make such inference in the trial of the accused as to the existence or non-existence of a fact, as may be appropriate in the circumstances; or
(b) In all other circumstances:
(i) Order disclosure; or
(ii) To the extent it does not order disclosure, make such inference in the trial of the accused as to the existence or non-existence of a fact, as may be appropriate in the circumstances.

Article 93
Other forms of cooperation
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.