PART VII – ADMISSIBILITY IN KENYA OF EVIDENCE OBTAINED ABROAD


37. Special authorization to come to Kenya

(1) Notwithstanding the provisions of the Kenya Citizenship and Immigration Act, 2011 (No. 12 of 2011), the Minister responsible for immigration may, in order to give effect to a request of the Central Authority, authorize a person in a requesting state, who is not eligible to be in Kenya, to come into Kenya at a place designated by the Minister responsible for home affairs and to go to and remain in a place in Kenya so designated for the period of time specified by the Minister responsible for home affairs.

(2) The Minister responsible for immigration may subject an authorization under subsection (1) to any terms and conditions he deems necessary, vary the terms of an authorization and, in particular, may extend the period of time during which the person is authorized to remain in a place in Kenya.

(3) A person to whom an authorization is granted under subsection (1) who is found in a place in Kenya other than the place designated in the authorization or in any place in Kenya after the expiration of the period of time specified in the authorization or who fails to comply with some other condition of the authorization shall, for the purpose of the Kenya Citizenship and Immigration Act, 2011 be deemed to be a person who entered Kenya as a visitor and remains therein after he has ceased to be a visitor.


38. Immunities

(1) Subject to subsection (2), where a person is in Kenya pursuant to a request made by the Central Authority the person shall not—
(a) be detained, prosecuted or punished in Kenya for any offence that is alleged to have been committed, or that was committed, before the person’s departure from a requesting state pursuant to the request;
(b) be subjected to any civil suit in respect of any act or omission of the person that is alleged to have occurred, before the person’s departure from the a requesting state pursuant to the request; or
(c) be required to give evidence in any proceeding in Kenya other than the proceeding to which the request relates, if any.

(2) Subsection (1) shall cease to apply to a person if—
(a) the person has left Kenya; or
(b) the person has had the opportunity of leaving Kenya and has remained in Kenya otherwise than for—
(i) the purpose to which the request relates;
(ii) the purpose of giving evidence in a proceeding in Kenya certified by the Central Authority, in writing, to be a proceeding in which it is desirable that the person give evidence; or
(iii) the purpose of giving assistance in relation to an investigation in Kenya certified by the Central Authority, in writing, to be an investigation in relation to which it is desirable that the person give assistance.


39. Privilege for foreign records

(1) Subject to section 33(2), a foreign record sent to the Central Authority by a requesting state in accordance with a Kenyan request shall be privileged and no person shall disclose to anyone the record or its purpose or the contents of the record, in compliance with the conditions on which it was so sent, it being made public or disclosed for the purpose of giving evidence.

(2) A person in possession of a record referred to in subsection (1) shall not be required, in connection with any legal proceedings, to give evidence relating to any information that is contained in the record or to produce the record.

Article 48
Privileges and immunities
1. The Court shall enjoy in the territory of each State Party such privileges and immunities as are necessary for the fulfilment of its purposes.
2. The judges, the Prosecutor, the Deputy Prosecutors and the Registrar shall, when engaged on or with respect to the business of the Court, enjoy the same privileges and immunities as are accorded to heads of diplomatic missions and shall, after the expiry of their terms of office, continue to be accorded immunity from legal process of every kind in respect of words spoken or written and acts performed by them in their official capacity.
3. The Deputy Registrar, the staff of the Office of the Prosecutor and the staff of the Registry shall enjoy the privileges and immunities and facilities necessary for the performance of their functions, in accordance with the agreement on the privileges and immunities of the Court.
4. Counsel, experts, witnesses or any other person required to be present at the seat of the Court shall be accorded such treatment as is necessary for the proper functioning of the Court, in accordance with the agreement on the privileges and immunities of the Court.
5. The privileges and immunities of:
(a) A judge or the Prosecutor may be waived by an absolute majority of the judges;
(b) The Registrar may be waived by the Presidency;
(c) The Deputy Prosecutors and staff of the Office of the Prosecutor may be waived by the Prosecutor;
(d) The Deputy Registrar and staff of the Registry may be waived by the Registrar.