PART IV—ARREST AND SURRENDER OF PERSONS TO ICC

28.

(3) The provisions of this Part applying in respect of—
(a) arrest where a request for surrender is received (sections 29 to 31);
(b) provisional arrest in urgent cases (sections 32 to 34);
(c) remand and bail (sections 35 to 38);
(d) eligibility for surrender (sections 39 to 42); and
(e) surrender and temporary surrender (sections 43 to 50),
shall have effect subject to sections 51 to 62 (which prescribe restrictions on surrender and the execution of a request for surrender).

PART IV—ARREST AND SURRENDER OF PERSONS TO ICC

Eligibility for Surrender

39. (1) If a person is brought before a High Court under this Part, the Court shall determine whether the person is eligible for surrender in relation to the international crime or crimes for which surrender is sought.

(2) Subsection (1) shall have effect subject to sections 34 and 41.
(3) The person is eligible for surrender if—

(a) a warrant for the arrest of the person issued by the ICC or a judgment of conviction for an international crime given by the ICC has been produced to the High Court;
(b) the Court is satisfied that the person is the person to whom the warrant or judgment relates;
(c) the Court is satisfied that the person was arrested in accordance with the proper process as provided in paragraph 2 (b) of article 59 of the Rome
Statute; and
(d) the Court is satisfied that the person's rights were respected as provided in paragraph 2 (c) of article 59 of the Rome Statute.
(4) Neither subsection (3) (c) nor subsection (3) (d) shall apply unless the person concerned puts the matter at issue.
(5) Notwithstanding subsection (3), the person is not eligible for surrender if he satisfies the High Court that a mandatory restriction on the surrender of the person specified in section 51 (1) applies.
(6) In any proceedings under this section—

(a) the person to whom the proceedings relate is not entitled to adduce, and the High Court is not entitled to receive, evidence to contradict an allegation that the person has engaged in conduct that constitutes the offence for which the surrender is sought; and
(b) in the case of a person accused of an offence, nothing in this section requires evidence to be produced or given at the hearing to establish, according to the law of Kenya, that the trial of the person would be justified if the conduct constituting the offence had occurred within the jurisdiction of Kenya.

PART IV—ARREST AND SURRENDER OF PERSONS TO ICC

Surrender and Temporary Surrender

43.

(3) The Minister shall not make a surrender order in respect of a person until the later of the following times—
(a) until the expiration of fifteen days after the date of
the issue of the warrant of detention of that person
under section 42 (2) (a); or
(b) if an appeal, or an application for review or habeas corpus in respect of a determination under this Act, or any appeal from such an appeal or application, is pending, until after the date that the proceedings are finally determined and the result is that the person is eligible to be surrendered.
(4) Nothing in subsection (3) shall apply to -

(a) a person who has consented to surrender under section 41, whether before the High Court or subsequently by notice to the Minister; or

(b) a person to whom section 39 applies but who has, in accordance with section 65, notified the Minister that he has waived -

(i) the right to make an application for a writ of habeas corpus within fifteen days after the date of the issue of the warrant; and

(ii) the right, in relation to every international crime for which the High Court has determined that the person is eligible to be surrendered, to lodge an appeal under section 63; or

(c) a person who the High Court determines is eligible for surrender for two or more inter-national crimes and who, under section 65, has waived—

(i) the right to make an application for habeas corpus within fifteen days after the date of the issue of the warrant; and

(ii) the right, in relation to only one or some of those international crimes, to lodge an appeal under section 63,

if the ICC withdraws its request for the surrender of the person for the international crime or crimes to which the waiver does not relate.


(5) If the Minister makes a surrender order in respect of a person described in section 4 (2), the Minister may arrange for any approvals, authorities, and permissions that may be needed to be obtained before surrender, including the variation, cancellation, or suspension of the sentence, or of any conditions of the sentence.

(6) Subject to section 44, once the Minister has made a surrender order, the Minister shall ensure that the person is delivered up to the ICC without delay in accordance with this Act and any applicable ICC Rules.

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

49. A surrender order made under section 43 or a temporary surrender order made under section 45 shall be in the prescribed form, if any, and shall—
(a) specify all the international crimes in relation to which the person is being surrendered;
(b) either—
(ii) if the person to be surrendered is on bail, authorise
any member of the police force
(i) require the person in whose custody the person to be surrendered is being held (if the person is being held in custody) to release the person to be surrendered into the custody of a member of the police force, or a prison officer; or
to take the person into custody;
(c) authorise the member of the police force or prison officer, as the case may be, to transport the person in custody and, if necessary or convenient, to detain the person in custody, for the purpose of enabling the person to be placed in the custody of a person who is, in the opinion of the Minister, duly authorised to receive the person to be surrendered in the name of and on behalf of the ICC; and
(d) authorise the duly authorised person referred to in paragraph (c) to take the person to be surrendered into custody and transport the person out of Kenya as soon as practicable to the ICC, there to be dealt with according to law.

PART IV—ARREST AND SURRENDER OF PERSONS TO ICC

Restrictions on Surrender

52.

(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.

Article 89
Surrender of persons to the Court
1. The Court may transmit a request for the arrest and surrender of a person, together with the material supporting the request outlined in article 91, to any State on the territory of which that person may be found and shall request the cooperation of that State in the arrest and surrender of such a person. States Parties shall, in accordance with the provisions of this Part and the procedure under their national law, comply with requests for arrest and surrender.
2. Where the person sought for surrender brings a challenge before a national court on the basis of the principle of ne bis in idem as provided in article 20, the requested State shall immediately consult with the Court to determine if there has been a relevant ruling on admissibility. If the case is admissible, the requested State shall proceed with the execution of the request. If an admissibility ruling is pending, the requested State may postpone the execution of the request for surrender of the person until the Court makes a determination on admissibility.
3. (a) A State Party shall authorize, in accordance with its national procedural law, transportation through its territory of a person being surrendered to the Court by another State, except where transit through that State would impede or delay the surrender.
(b) A request by the Court for transit shall be transmitted in accordance with article 87. The request for transit shall contain:
(i) A description of the person being transported;
(ii) A brief statement of the facts of the case and their legal characterization; and
(iii) The warrant for arrest and surrender;
(c) A person being transported shall be detained in custody during the period of transit;
(d) No authorization is required if the person is transported by air and no landing is scheduled on the territory of the transit State;
(e) If an unscheduled landing occurs on the territory of the transit State, that State may require a request for transit from the Court as provided for in subparagraph (b). The transit State shall detain the person being transported until the request for transit is received and the transit is effected, provided that detention for purposes of this subparagraph may not be extended beyond 96 hours from the unscheduled landing unless the request is received within that time.
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.