PART IV—ARREST AND SURRENDER OF PERSONS TO ICC

Surrender and Temporary Surrender

44. (1) This section shall apply if the Minister hasdetermined 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.

(2) If this section applies, the Minister 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.

PART IV—ARREST AND SURRENDER OF PERSONS TO ICC

Surrender and Temporary Surrender

45. (1) This section shall apply if—
(a) the request by the ICC for surrender relates to an
international crime of which the person is accused;
(b) the Minister has determined under section 43 that in all other respects it is appropriate to make a surrender order but the person sought is either—

(i) the subject of proceedings for a different offence against Kenyan law that has not been finally disposed of; or
(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
(c) after consultation by the Minister with the ICC, the ICC requests that the person be surrendered temporarily.

(2) The Minister may make a temporary surrender order in respect of the person concerned.
(3) Before making a temporary surrender order, the Minister may seek undertakings from the ICC relating to one or more of the following matters—
(a) the return of the person to Kenya;
(b) the custody of the person while travelling to and from and while in the ICC's jurisdiction;
(c) such other matters, if any, that the Minister thinks appropriate.

PART IV—ARREST AND SURRENDER OF PERSONS TO ICC

Surrender and Temporary Surrender

46. (1) The Minister 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.

(2) The Minister 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.


47. (1) The Minister may make a surrender order in relation to a person who was surrendered to the ICC under a temporary surrender order if—
(a) the person has been convicted by the ICC of an international crime and sentenced to imprison¬ment;
(b) the person is returned to Kenya in order for the Kenyan proceedings or sentence to be completed; and
(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.

(2) An order under subsection (1) shall not be made unless the Minister has determined, in accordance with section 43, that the person is to be surrendered.
(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.

PART IV—ARREST AND SURRENDER OF PERSONS TO ICC

Restrictions on Surrender

54.

(2) Nothing in this section limits or affects section 44 which allows the Minister, after consultation with the ICC, to make a surrender order that comes into force at a later date if a person is serving a sentence for a different offence against Kenyan law.

Article 89
Surrender of persons to the Court
4. If the person sought is being proceeded against or is serving a sentence in the requested State for a crime different from that for which surrender to the Court is sought, the requested State, after making its decision to grant the request, shall consult with the Court.

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.