PART VII—PERSONS IN TRANSIT TO ICC OR SERVING SENTENCES IMPOSED BY ICC
Enforcement of Sentences in Kenya
134. (1) The Minister may advise the ICC that Kenya is willing to allow persons who are ICC prisoners as a result of being sentenced to imprisonment by the ICC to serve those sentences in Kenya, subject to any specified conditions.
(2) If advice is given under subsection (1), the Minister may, at any time, advise the ICC—
(a) of further conditions that Kenya wishes to impose in relation to the serving of sentences in Kenya by ICC prisoners; or
(b) that it wishes to withdraw a condition referred to in subsection (1) or paragraph (a).
(3) Before providing advice under subsection (1) or subsection (2), the Minister shall consult with—
(a) the Commissioner of Police;
(b) the permanent secretary in the Ministry respon¬sible for prisons; and
(c) the permanent secretary in the Ministry respon¬sible for labour.
(4) If advice is given under subsection (1), the Minister may, at any time, advise the ICC that Kenya is no longer willing to allow ICC prisoners to serve their sentences in Kenya.
(5) Any advice given under subsection (4) does not affect the enforcement of sentences for which the Minister has accepted the designation of the ICC under section 135 (1) (c).
135. (1) This section and sections 136 to 151 shall apply if—
(a) the Minister has given advice under section 134 (1) and has not withdrawn that advice under section 134(4);
(b) the ICC imposes a sentence of imprisonment on a person—
(i) convicted of an international crime; or
(ii) convicted of an offence against the admin¬istration of justice; and
(c) the ICC designates Kenya, under article 103 of the Rome Statute, as the State in which the sentence is to be served.
(2) If the Minister accepts the designation, the Minister shall issue an order for detention in the prescribed form, and forward that order and any information about the person supplied by the ICC to each of the following persons—
(a) the Commissioner of Police;
(b) the permanent secretary in the Ministry respon¬sible for prisons; and
(c) the permanent secretary in the Ministry respon¬sible for labour.
(3) The Minister may, at any time, ask the ICC to give one or more of the following assurances—
(a) that all or part of the transportation costs incurred by Kenya in the enforcement of the sentence will
be met by the ICC;
(b) that the ICC will arrange for the transportation of the ICC prisoner who is the subject of the designation—
(i) to Kenya, for the purpose of enabling his sentence to be enforced in Kenya; or
(ii) from Kenya, on the completion of the sentence, or if the ICC prisoner is to be transferred to another country;
(c) an assurance relating to such other matters as the Minister thinks appropriate.
136. (1) If the Minister accepts the designation of Kenya as the State in which a sentence of imprisonmentimposed by the ICC is to be served, the ICC prisoner may be transported to Kenya in the custody of—
(a) a member of the police force;
(b) a prison officer; or
(c) a person authorised for the purpose by the ICC.
(2) On arrival in Kenya or, if the person is already in
Kenya when the sentence is imposed, on the imposition of
the sentence, the ICC prisoner shall be detained in
accordance with the Prisons Act as if the prisoner had
been sentenced to imprisonment under Kenyan law.
(3) Notwithstanding subsection (2) and any other enactment—
(a) the ICC prisoner has the right to communicate on a confidential basis with the ICC, without impediment from any person; and
(b) a Judge of the ICC or a member of the staff of the ICC may visit the ICC prisoner for the purpose of hearing any representations by the prisoner without the presence of any other person, except any representative of the prisoner;
137. The order for detention issued by the Ministerunder section 135 (2) shall, for the purposes of this Part and the Prisons Act, be sufficient authority for the detention of the prisoner to which the notice relates—
(a) until the ICC prisoner completes, or is released from, the sentence or is transferred to another country; and
(b) during any further period that the ICC prisoner is required to serve the sentence if the ICC makes an order for recall of the prisoner.
138. (1) The administration of a sentence of imprisonment imposed by the ICC that is served in Kenya, including any decision to release or transfer the ICC prisoner, shall be undertaken in accordance with Part 10 of the Rome Statute and the ICC Rules.
(2) If, in relation to the administration of a sentence of
imprisonment that is served in Kenya by an ICC prisoner,
there is any inconsistency between the provisions of the
Penal Code or the Prisons Act and the provisions of the
Rome Statute and the ICC Rules, the provisions of that
Statute and those Rules shall prevail.
139. (1) where the ICC, under article 110ofthe Rome Statute, decides to review the sentence of an ICC prisoner who is serving that sentence in Kenya, the Minister shall direct that the prisoner be transferred to the ICC for the purposes of enabling the ICC to review the prisoner's sentence if the Minister is satisfied that—
(a) the prisoner is entitled to appear before the ICC at the review of the prisoner's sentence;
(b) the ICC has requested the prisoner to appear before it at the review; or
(c) the interests of justice require the prisoner's attendance at the ICC.
(2) If the Minister gives a direction under subsection (1), the Minister shall forward a notice of the direction to each of the following persons—
(a) the Commissioner of Police;
(b) the permanent secretary in the Ministry respon¬sible for prisons; and
(c) the permanent secretary in the Ministry respon¬sible for labour.
(3) On the giving of a direction under subsection (1), the prisoner may be transported to the ICC and, if necessary, from the ICC in the custody of—
(a) a member of the police force; or
(b) a prison officer; or
(c) a person authorised for the purpose by the ICC.
140. (1) This section shall apply if the ICC—
(a) directs that an ICC prisoner appear before it to
give evidence in another case; or
(b) requests that an ICC prisoner appear before it for any other reason.
(2) The Minister—
(a) if subsection (1) (a) applies, shall direct that the ICC prisoner be transferred to the ICC; or
(b) if subsection (1) (b) applies, may direct that the ICC prisoner be transferred to the ICC if the Minister is satisfied that the interests of justice require the prisoner's attendance at the ICC.
(3) If the Minister gives a direction under subsection (2), section 139 (2) and (3) shall apply, with any neces¬sary modifications.
(4) This section shall not apply if the request by the ICC is a request to which section 90 (1) applies.
141. If an ICC prisoner of any nationality is to be to transferred from Kenya to another State to complete that sentence, the prisoner may be transported from Kenya to that State in the custody of—
(a) a member of the police force;
(b) a prison officer; or
(c) a person authorised for the purpose by the ICC.
142. (1) If an ICC prisoner is to complete his sentence in Kenya or to be released at the direction of the ICC while in Kenya and the prisoner is not a Kenyan citizen, the Minister shall, before the date of completion or release, either—
(a) make a removal order under section 148; or
(b) issue a certificate under section 145 giving the prisoner temporary authority to remain in Kenya.
(2) The Minister shall not issue the certificate referred to in subsection (1) (b) unless the Minister is satisfied
that—
(a) because of the special circumstances of the ICC prisoner, it would be inappropriate to make a removal order; or
(b) it is desirable to issue a certificate under section 145 in order to facilitate the processing of a request for extradition of the ICC prisoner, or the investigation of an offence, or to enable the prisoner to serve another sentence in Kenya, or for any other reason in the interests of justice.
(3) This section shall have effect subject to section
143.
143. (1) An ICC prisoner serving a sentence in Kenya may—
(a) be extradited to another country in accordance with the Extradition (Commonwealth Countries) Act or the Extradition (Contiguous and Foreign Countries) Act, either—
(i) at the completion of the sentence; or
(ii) during the sentence, but only for a temporary
period;
(b) be required to remain in Kenya in order to serve any sentence that the prisoner is liable to serve under Kenyan law; or
(c) be required to remain in Kenya to undergo trial for an offence under Kenyan law.
(2) Notwithstanding subsection (1)—
(a) a person to whom subsection (1) (a) applies may not be extradited to another country without the prior agreement of the ICC;
(b) a person to whom subsection (1) (b) or subsection (1) (c) applies may not be required to serve a sentence in Kenya or to undergo trial for an offence under Kenyan law, as the case may be, that relates to an act or omission that occurred before the designation referred to in section 135 (1) (c), without the prior agreement of the ICC.
(3) Subsection (2) shall not apply to a person who—
(a) remains voluntarily in Kenya for more than thirty days after the date of completion of, or release from, the sentence imposed by the ICC; or
(b) voluntarily returns to Kenya after having left it.
Enforcement of sentences imposed
EDIT.