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.
Protection of national security
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