International Crimes Act

LAWS OF KENYA
THE INTERNATIONAL CRIMES ACT
CAP. 60
Revised and published by the National Council for Law Reporting
with the authority of the Attorney-General as gazetted by the Government Printer
www.kenyalaw.org

Kenya
International Crimes Act
Cap. 60
Legislation as at 11 December 2023
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Share widely and freely.

International Crimes Act (Cap. 60)
Contents
Part I – PRELIMINARY ....................................................................................................................................................................................... 1
1. Short title .................................................................................................................................................................................................... 1
2. Interpretation ............................................................................................................................................................................................. 1
3. Act to bind the Government ................................................................................................................................................................ 2
4. Rome Statute to have force of law ................................................................................................................................................... 2
5.

................................................................................................................................................. 2
5.

Obligations imposed by Rome Statute or ICC Rules .................................................................................................................. 3
Part II – INTERNATIONAL CRIMES AND OFFENCES AGAINST ADMINISTRATION OF JUSTICE ................................................ 3
6. Genocide, etc. ............................................................................................................................................................................................ 3
7. General principles of criminal law ..................................................................................................................................................... 4
8. Jurisdiction to try offences under section 6 ................................................................................................................................... 5
9. Bribery of judges and officials ............................................................................................................................................................ 5
10.

................................................................................................................................................ 5
10.

Obstructing justice ................................................................................................................................................................................ 6
11. Obstructing officials .............................................................................................................................................................................. 6
12. Perjury ........................................................................................................................................................................................................ 6
13. Witness giving contradictory evidence .......................................................................................................................................... 6
14. Fabricating evidence ............................................................................................................................................................................ 7
15. Offences relating to affidavits .......................................................................................................................................................... 7
16.

................................................................................................................................................ 7
16.

Intimidation ............................................................................................................................................................................................. 7
17. Retaliation against witnesses ............................................................................................................................................................ 7
18. Jurisdiction to try offences under sections 9 to 17 .................................................................................................................. 7
19. Co-operation as regards offences against administration of justice ................................................................................... 8
Part III – GENERAL PROVISIONS RELATING TO REQUESTS FOR ASSISTANCE ............................................................................. 8
20. Requests for assistance ....................................................................................................................................................................... 8
21.

................................................................................................................................................ 8
21.

Requests to be made through authorised channel ................................................................................................................... 9
22. Urgent requests ................................................................................................................................................................................... 10
23. Execution of requests ........................................................................................................................................................................ 10
24. Consultation .......................................................................................................................................................................................... 10
25. Confidentiality of request ................................................................................................................................................................ 11
26. Response to be sent to ICC ............................................................................................................................................................ 11
27.

............................................................................................................................................... 11
27.

Official capacity of person no bar to request ........................................................................................................................... 12
Part IV – ARREST AND SURRENDER OF PERSONS TO ICC ............................................................................................................... 12
28. Request for arrest and surrender .................................................................................................................................................. 12
29. Cabinet Secretary to request issue of arrest warrant ............................................................................................................ 12
30. Issue of arrest warrant ...................................................................................................................................................................... 13

................................................................................................................................................... 13

31. Cancellation of warrant .................................................................................................................................................................... 13
32. Provisional arrest warrant ................................................................................................................................................................ 13
33. Notice to be given to Cabinet Secretary .................................................................................................................................... 13
34. Procedure where provisional arrest warrant issued ............................................................................................................... 14
35. Procedure following arrest .............................................................................................................................................................. 14
36. Procedure for bail ............................................................................................................................................................................... 15
37.

............................................................................................................................................... 15
37.

Powers of High Court ......................................................................................................................................................................... 15
38. Detention in place other than prison .......................................................................................................................................... 15
39. Determination of eligibility for surrender ................................................................................................................................. 15
40. Adjournment of hearing ................................................................................................................................................................... 16
41. Surrender by consent ........................................................................................................................................................................ 16
42. Procedure following determination on eligibility or consent to surrender ................................................................... 17
43.

2. Procedure following determination on eligibility or consent to surrender ................................................................... 17
43.

Cabinet Secretary to determine whether person to be surrendered ................................................................................ 17
44. Surrender order may take effect at later date ......................................................................................................................... 19
45. Temporary surrender to ICC ............................................................................................................................................................ 19
46. Decision to return to Kenya after trial ....................................................................................................................................... 19
47. Request to return to ICC after temporary surrender .............................................................................................................. 20
48. Kenyan sentences continue to run ............................................................................................................................................... 20
49. Form and execution of surrender order or temporary surrender order ...........................................................................

20
49. Form and execution of surrender order or temporary surrender order ...........................................................................

20
50. Surrender to State of enforcement .............................................................................................................................................. 21
51. Refusal of surrender ........................................................................................................................................................................... 21
52. Postponement of execution of request for surrender ........................................................................................................... 21
53. Previous proceedings against person sought ........................................................................................................................... 22
54. Ongoing Kenyan investigation or proceedings involving different conduct ................................................................. 22
55. Person being prosecuted in Kenya for same conduct ........................................................................................................... 23
56.

rosecuted in Kenya for same conduct ........................................................................................................... 23
56.

Other challenges to admissibility ................................................................................................................................................. 23
57. Request from ICC and other State relating to same conduct ............................................................................................. 23
58. Procedure where competing request from State Party ......................................................................................................... 24
59. Procedure where competing request from non-State Party ................................................................................................ 24
60. Request from ICC and other State relating to different conduct ...................................................................................... 25
61. Notification of decision on extradition to requesting State ................................................................................................ 25
62. Conflict with obligations to another State ................................................................................................................................ 25
63.

another State ................................................................................................................................ 25
63.

Appeal on question of law by way of case stated ................................................................................................................. 26
64. Custody pending determination of appeal ................................................................................................................................ 26
65. Waiver of rights to apply for habeas corpus or to lodge appeal ....................................................................................... 26

ver of rights to apply for habeas corpus or to lodge appeal ....................................................................................... 26

66. Powers of court on appeal .............................................................................................................................................................. 26
67. Further provisions relating to powers of court on appeal ................................................................................................... 27
68. Discharge of person if Cabinet Secretary declines to order surrender ............................................................................ 28
69. Discharge of person if not surrendered within two months ............................................................................................... 28
70. Discharge of person if not re-surrendered ................................................................................................................................ 28
71. Discharge of person under this Part does not preclude further proceedings ............................................................... 29
72. Search and seizure on arrest .......................................................................................................................................................... 29
73.

............................................................................................................................................... 29
73.

Disposal of property seized ............................................................................................................................................................ 29
74. Information about time spent in custody in Kenya ............................................................................................................... 30
75. Consent to trial of surrendered person for previous offences ............................................................................................ 30
Part V – DOMESTIC PROCEDURES FOR OTHER TYPES OF CO-OPERATION ............................................................................... 30
76. Assistance in locating or identifying persons or things ....................................................................................................... 30
77. Assistance in gathering evidence .................................................................................................................................................. 31
78.

............................................................................................................................................... 31
78.

Taking evidence ................................................................................................................................................................................... 31
79. Producing documents or other articles ...................................................................................................................................... 31
80. Protection of witnesses .................................................................................................................................................................... 32
81. ICC may give evidence certificate ................................................................................................................................................. 32
82. Certain persons may appear ........................................................................................................................................................... 33
83. Powers of Judge may be exercised by Registrar ..................................................................................................................... 33
84.

be exercised by Registrar ..................................................................................................................... 33
84.

Assistance in questioning persons ............................................................................................................................................... 33
85. Procedure where questioning by Kenyan agency ................................................................................................................... 34
86. Assistance in arranging service of documents ......................................................................................................................... 34
87. Request for voluntary appearance of witness .......................................................................................................................... 35
88. Consent required and assurances may be sought .................................................................................................................. 35
89. Director of Public Prosecutions may facilitate appearance ................................................................................................. 36
90.

Public Prosecutions may facilitate appearance ................................................................................................. 36
90.

Request for temporary transfer of prisoner ............................................................................................................................... 36
91. Consent required and assurances may be sought .................................................................................................................. 37
92. Director of Public Prosecutions may arrange for transfer .................................................................................................... 37
93. Effect of transfer on prisoner’s sentence ................................................................................................................................... 38
94. Request for information about time spent in custody overseas ........................................................................................ 38
95. Assistance in examining places or sites ..................................................................................................................................... 38
96.

or sites ..................................................................................................................................... 38
96.

Request for search and seizure ..................................................................................................................................................... 39
97. Issue of search warrant ..................................................................................................................................................................... 39
98. Form and content of search warrant ........................................................................................................................................... 39
99. Powers conferred by warrant .......................................................................................................................................................... 40

................................................................................................................................................... 40

100. Power to stop vehicles ................................................................................................................................................................... 40
101. Person executing warrant to produce evidence of authority ........................................................................................... 40
102. Notice of execution of warrant ................................................................................................................................................... 40
103. Disposal of things seized .............................................................................................................................................................. 41
104. Facilitating provision of records and documents ................................................................................................................. 41
105. Protecting victims and witnesses and preserving evidence ............................................................................................. 42
106.

ng victims and witnesses and preserving evidence ............................................................................................. 42
106.

Request relating to property associated with crime ........................................................................................................... 43
107. Director of Public Prosecutions may authorise measures .................................................................................................. 43
108. Request for other types of assistance ...................................................................................................................................... 43
109. Refusal of assistance ....................................................................................................................................................................... 44
110. Postponement of execution of assistance ............................................................................................................................... 44
111. Procedure if execution of assistance precluded under Kenyan law ............................................................................... 45
112. Postponement where ongoing investigation or prosecution ........................................................................................... 45
113.

onement where ongoing investigation or prosecution ........................................................................................... 45
113.

Postponement where admissibility challenge ....................................................................................................................... 45
114. Competing requests ......................................................................................................................................................................... 46
115. Requests involving conflict with other international obligations ................................................................................... 46
116. Effect of authority to proceed ..................................................................................................................................................... 47
117. Request may relate to assistance sought by defence ......................................................................................................... 47
118. Execution of request by Prosecutor ...........................................................................................................................................

Prosecutor ...........................................................................................................................................

47
Part VI – ENFORCEMENT OF PENALTIES ................................................................................................................................................. 47
119. Assistance with enforcement of orders for victim reparation .......................................................................................... 47
120. Enforcement of fines ....................................................................................................................................................................... 48
121. Request for forfeiture of property .............................................................................................................................................. 49
122. Application for registration of forfeiture order ..................................................................................................................... 49
123. Manner of registration of order .................................................................................................................................................. 49
124.

.............................................................................................................................................. 49
124.

Notice of registration of order .................................................................................................................................................... 50
125. Effect of registration of order ...................................................................................................................................................... 50
126. Forfeiture order may be treated as pecuniary penalty order ........................................................................................... 50
127. Third parties may apply for relief .............................................................................................................................................. 51
128. Court may grant relief to third party ........................................................................................................................................ 51
129. Cancellation of registration of order ......................................................................................................................................... 52
130.

rder ......................................................................................................................................... 52
130.

Money or property recovered to be transferred to ICC ...................................................................................................... 52
Part VII – PERSONS IN TRANSIT TO ICC OR SERVING SENTENCES IMPOSED BY ICC ............................................................. 52
131. Transit by person being surrendered or transferred to ICC .............................................................................................. 52
132. Transferee to be held in custody ................................................................................................................................................ 53

dy ................................................................................................................................................ 53

133. Cabinet Secretary to make removal order or issue certificate ......................................................................................... 54
134. Kenya may act as State of enforcement .................................................................................................................................. 54
135. Request for sentence to be served in Kenya ......................................................................................................................... 54
136. Prisoner to be held in custody .................................................................................................................................................... 55
137. Order for detention to act as authority for detention. ........................................................................................................ 56
138. Sentence to be served in accordance with Rome Statute ................................................................................................. 56
139. Transfer of prisoner to ICC for review of sentence .............................................................................................................. 56
140.

r to ICC for review of sentence .............................................................................................................. 56
140.

Transfer of prisoner to ICC for other purposes ...................................................................................................................... 56
141. Transfer of prisoner to another State to complete sentence ........................................................................................... 57
142. Cabinet Secretary to make removal order or issue certificate ......................................................................................... 57
143. Special rules in certain cases ...................................................................................................................................................... 57
144. Extradition of escaped ICC prisoner .......................................................................................................................................... 58
145. Certificate giving temporary authority to remain in Kenya .............................................................................................. 58
146.

e giving temporary authority to remain in Kenya .............................................................................................. 58
146.

Cancellation of certificate ............................................................................................................................................................. 59
147. Further provisions relating to certificate ................................................................................................................................. 59
148. Removal order .................................................................................................................................................................................... 60
149. Delay in removal .............................................................................................................................................................................. 60
150. Immigration permit not required ............................................................................................................................................... 60
151. Kenyan citizens ..................................................................................................................................................................................

......................................................................................................................................................

60
Part VIII – PROTECTION OF NATIONAL SECURITY OR THIRD PARTY INFORMATION .............................................................. 61
152. National security issues to be dealt with under article 72 .............................................................................................. 61
153. Part 9 request involving national security .............................................................................................................................. 61
154. Information or evidence involving national security .......................................................................................................... 61
155. Other situations involving national security .......................................................................................................................... 61
156. Consultation with ICC required ................................................................................................................................................... 62
157. Procedure where no resolution ................................................................................................................................................... 62
158.

.............................................................................................................................................. 62
158.

Director of Public Prosecutions to take into account ICC’s ability to refer matter to Security Council ............... 62
159. Disclosure of information provided by third party .............................................................................................................. 63
160. Request for Kenya’s consent to disclosure .............................................................................................................................. 63
Part IX – INVESTIGATIONS OR SITTINGS OF ICC IN KENYA ............................................................................................................ 63
161. Prosecutor may conduct investigations in Kenya ................................................................................................................. 63
162. ICC sittings in Kenya ....................................................................................................................................................................... 64
163. ICC’s powers while sitting in Kenya .......................................................................................................................................... 64
164.

nya .......................................................................................................................................... 64
164.

ICC may administer oaths in Kenya .......................................................................................................................................... 64
165. Orders made by ICC not subject to review ............................................................................................................................. 64

not subject to review ............................................................................................................................. 64

166. Power to detain ICC prisoners in Kenya prisons if ICC holds sitting in Kenya ........................................................... 64
167. Removal of ICC prisoner ................................................................................................................................................................. 65
Part X – REQUESTS TO ICC FOR ASSISTANCE ...................................................................................................................................... 65
168. Director of Public Prosecutions or Cabinet Secretary may request assistance from ICC ......................................... 65
169. Making of request ............................................................................................................................................................................ 65
170. Types of requests to ICC ................................................................................................................................................................ 65
Part XI – MISCELLANEOUS PROVISIONS AND CONSEQUENTIAL AMENDMENTS ..................................................................... 65
171.

..... 65
Part XI – MISCELLANEOUS PROVISIONS AND CONSEQUENTIAL AMENDMENTS ..................................................................... 65
171.

Certificates given by Director of Public Prosecutions ......................................................................................................... 65
172. Regulations ......................................................................................................................................................................................... 66
173. Regulations to implement Rules of Evidence and Procedure .......................................................................................... 66
174. [Spent] .................................................................................................................................................................................................. 66
FIRST SCHEDULE [s. 2] ................................................................................................................................................................................... 66
SECOND SCHEDULE [s. 107] ....................................................................................................................................................................... 121

.................................................................................................................................................. 121

International Crimes Act (Cap. 60) Kenya
INTERNATIONAL CRIMES ACT
CAP. 60
Published in Kenya Gazette Vol. CXI—No. 2 on 9 January 2009
Assented to on 24 December 2008
Commenced on 1 January 2009 by International Crimes Act Commencement
[Revised by 24th Annual Supplement (Legal Notice 221 of 2023) on 31 December 2022]
[Amended by Statute Law (Miscellaneous Amendment) Act, 2023 (Act No. 19 of 2023) on 11 December 2023]
An Act of Parliament to make provision for the punishment of certain international crimes, namely
genocide, crimes against humanity and war crimes, and to enable Kenya to co-operate with the
International Criminal Court established by the Rome Statute in the performance of its functions
Part I – PRELIMINARY
1. Short title
This Act may be cited as the International Crimes Act. 2.

by the Rome Statute in the performance of its functions
Part I – PRELIMINARY
1. Short title
This Act may be cited as the International Crimes Act. 2.

Interpretation
(1) In this Act, unless the context otherwise requires—
"Appeals Chamber" means the appeals Chamber of the ICC;
"Cabinet Secretary" means the Cabinet Secretary for the time being responsible for matters relating
to national security;
"forfeiture order" means an order made by the ICC under paragraph 2(b) of article 77 of the Rome
Statute or under the ICC Rules for the forfeiture of property, and includes a forfeiture order that is
treated for the purposes of enforcement as a pecuniary penalty order under section 126;
"ICC" means the International Criminal Court established by the Rome Statute, and includes any of
the organs of the Court that are referred to in that Statute;
"ICC prisoner" means a person who is—
(a) sentenced to imprisonment by the ICC; or
1

of
the organs of the Court that are referred to in that Statute;
"ICC prisoner" means a person who is—
(a) sentenced to imprisonment by the ICC; or
1

International Crimes Act (Cap.

International Crimes Act (Cap.

60) Kenya
(b) the subject of a request by the ICC under section 166(1)(b) to be held in custody during a
sitting of the ICC in Kenya;
"ICC Rules" means the Rules of Procedure and Evidence made under article 51 of the Rome Statute;
"international crime" means, in relation to the ICC, a crime in respect of which the ICC has
jurisdiction under article 5 of the Rome Statute;
"Kenyan prisoner" or "prisoner" means a person who is for the time being in the legal custody of the
officer in charge of any Kenyan prison, whether or not that person has been convicted of an offence;
"official", in relation to the International Criminal Court, means the Prosecutor, Registrar, Deputy
Prosecutor, Deputy Registrar or other staff of the organs of the Court;
"person" means a natural person, a company or association or body of persons corporate or
unincorporated;
"Pre-Trial Chamber" means the Pre-Trial Chamber of the ICC;
"property" means real or personal property of every description, whether situated in Kenya or
elsewhere and whether tangible or intangible, and includes an interest in any such real or personal
property;
"Prosecutor" means the Prosecutor of the ICC;
"Rome Statute" means the Rome Statute of the International Criminal Court, adopted by the United
Nations Diplomatic Conference of Plenipotentiaries on 17th July, 1998, as corrected by the procès-
verbaux of 10th November, 1998, 12th July, 1999, 30th November, 1999 and 8th May, 2000, a copy of
the English text of which is set out in the Schedule to this Act.

th November, 1998, 12th July, 1999, 30th November, 1999 and 8th May, 2000, a copy of
the English text of which is set out in the Schedule to this Act.

"Trial Chamber" means the Trial Chamber of the ICC. (2) In this Act—
(a) a reference to a request by the ICC for assistance includes a reference to a request by the ICC
for co-operation;
(b) a reference to a request by the ICC for assistance under a specified provision or in relation to
a particular matter includes a reference to a request by the ICC for co-operation under that
provision or in relation to that matter;
(c) a reference to a sentence of imprisonment imposed by the ICC includes a reference to a
sentence of imprisonment extended by the ICC (whether for the non-payment of a fine or
otherwise);
(d) a reference to a sentence of imprisonment imposed by the ICC for an international crime
or an offence against the administration of justice includes a reference to a sentence of
imprisonment imposed by the ICC for non-payment of a fine that was a penalty for that
crime or offence, as the case may be. 3. Act to bind the Government
This Act shall be binding on the Government. 4.

a fine that was a penalty for that
crime or offence, as the case may be. 3. Act to bind the Government
This Act shall be binding on the Government. 4.

Rome Statute to have force of law
(1) The provisions of the Rome Statute specified in subsection (2) shall have the force of law in Kenya
in relation to the following matters—
(a) the making of requests by the ICC to Kenya for assistance and the method of dealing with
those requests;
(b) the conduct of an investigation by the Prosecutor or the ICC;
2

by the ICC to Kenya for assistance and the method of dealing with
those requests;
(b) the conduct of an investigation by the Prosecutor or the ICC;
2

International Crimes Act (Cap. 60) Kenya
(c) the bringing and determination of proceedings before the ICC;
(d) the enforcement in Kenya of sentences of imprisonment or other measures imposed by the
ICC, and any related matters;
(e) the making of requests by Kenya to the ICC for assistance and the method of dealing with
those requests. (2) The relevant provisions of the Rome Statute are—
(a) Part 2 (which relates to jurisdiction, admissibility, and applicable law);
(b) Part 3 (which relates to general principles of criminal law);
(c) articles 51 and 52 (which relate respectively to the Rules of Procedure and Evidence, and
Regulations of the Court);
(d) Part 5 (which relates to the investigation and prosecution of crimes within the jurisdiction of
the ICC);
(e) Part 6 (which relates to the conduct of trials);
(f) Part 7 (which relates to penalties);
(g) Part 8 (which relates to appeals and revision of acquittals, convictions, or sentences);
(h) Part 9 (which relates to international co-operation and judicial assistance);
(i) Part 10 (which relates to the enforcement of sentences and other measures imposed by the
ICC). 5.

rnational co-operation and judicial assistance);
(i) Part 10 (which relates to the enforcement of sentences and other measures imposed by the
ICC). 5.

Obligations imposed by Rome Statute or ICC Rules
For the purposes of any provision of the Rome Statute or the ICC Rules that confers or imposes a power,
duty or function on a State, that power, duty or function may be exercised or carried out on behalf of the
Government of Kenya by the Director of Public Prosecutions, if this Act makes no other provision in that
behalf. [Act No. 19 of 2023, Sch.]
Part II – INTERNATIONAL CRIMES AND OFFENCES
AGAINST ADMINISTRATION OF JUSTICE
International Crimes
6. Genocide, etc. (1) A person who, in Kenya or elsewhere, commits—
(a) genocide;
(b) a crime against humanity; or
(c) a war crime, is guilty of an offence. (2) A person who, in Kenya or elsewhere, conspires or attempts to commit, or is an accessory after the
fact in relation to, or who counsels in relation to, an offence mentioned in subsection (1) is guilty of
an offence. (3) A person who commits an offence under subsection (1) or (2) shall on conviction be liable—
(a) to be punished as for murder, if an intentional killing forms the basis of the offence; or
3

subsection (1) or (2) shall on conviction be liable—
(a) to be punished as for murder, if an intentional killing forms the basis of the offence; or
3

International Crimes Act (Cap. 60) Kenya
(b) to imprisonment for life or for a lesser term, in any other case. (4) In this section—
"crime against humanity" has the meaning ascribed to it in article 7 of the Rome Statute and
includes an act defined as a crime against humanity in conventional international law or customary
international law that is not otherwise dealt with in the Rome Statute or in this Act;
"genocide" has the meaning ascribed to it in article 6 of the Rome statute;
"war crime" has the meaning ascribed to it in paragraph 2 of article 8 of the Rome Statute. [Cf. Rome Statute, articles 6 to 8.]
7.

the Rome statute;
"war crime" has the meaning ascribed to it in paragraph 2 of article 8 of the Rome Statute. [Cf. Rome Statute, articles 6 to 8.]
7.

General principles of criminal law
(1) For the purposes of proceedings for an offence under section 6, the following provisions of the
Rome Statute shall apply, with any necessary modifications—
(a) article 20 (which relates to crimes for which a person has previously been acquitted or
convicted);
(b) article 21 (which deals with the law applicable at proceedings at international level);
(c) paragraph 2 of article 22 (which relates to principles of interpretation to be applied to the
definition of crimes);
(d) article 25 (which relates to principles of individual criminal responsibility);
(e) article 26 (which relates to the exclusion of jurisdiction over persons under eighteen years);
(f) article 28 (which relates to the responsibility of commanders and other superiors);
(g) article 29 (which excludes any statute of limitations);
(h) article 30 (which relates to the mental element of crimes);
(i) article 31 (which specifies grounds for excluding criminal responsibility);
(j) article 32 (which relates to mistakes of fact or law);
(k) article 33 (which relates to superior orders and prescription of law).

responsibility);
(j) article 32 (which relates to mistakes of fact or law);
(k) article 33 (which relates to superior orders and prescription of law).

(2) For the purposes of any such proceedings—
(a) the provisions of Kenyan law and the principles of criminal law applicable to the offence
under Kenyan law shall apply; and
(b) a person charged with the offence may rely on any justification, excuse, or defence available
under the laws of Kenya or under international law:
Provided that—
(i) in the event of any inconsistency between the provisions specified in subsection (1) and
the provisions and principles specified in paragraph (a) of this subsection, the provisions
specified in subsection (1) shall prevail; and
(ii) the fact that an act done outside Kenya is not an offence under the law of the place where it
was done shall not be held to be any justification, excuse, or defence. (3) For the purposes of subsection (1), the articles of the Rome Statute specified in that subsection
(other than article 20) shall apply as if—
(a) a reference to the ICC were a reference to the Kenyan court exercising jurisdiction in respect
of the proceedings; and
4

le 20) shall apply as if—
(a) a reference to the ICC were a reference to the Kenyan court exercising jurisdiction in respect
of the proceedings; and
4

International Crimes Act (Cap. 60) Kenya
(b) a reference to the Rome Statute included a reference to this Act. (4) For the purposes of interpreting and applying articles 6 to 8 of the Rome Statute in proceedings for
an offence under section 6—
(a) the Kenyan Court exercising jurisdiction in the proceedings shall have regard to any
elements of crimes adopted or amended in accordance with article 9 of the Rome Statute;
and
(b) provisions of the Penal Code (Cap. 63), to the extent of any inconsistency with the
application of paragraph (a), shall not apply. 8.

Statute;
and
(b) provisions of the Penal Code (Cap. 63), to the extent of any inconsistency with the
application of paragraph (a), shall not apply. 8.

Jurisdiction to try offences under section 6
(1) A person who is alleged to have committed an offence under section 6 may be tried and punished in
Kenya for that offence if—
(a) the act or omission constituting the offence is alleged to have been committed in Kenya; or
(b) at the time the offence is alleged to have been committed—
(i) the person was a Kenyan citizen or was employed by the Government of Kenya in a
civilian or military capacity;
(ii) the person was a citizen of a state that was engaged in an armed conflict against
Kenya, or was employed in a civilian or military capacity by such a state;
(iii) the victim of the alleged offence was a Kenyan citizen; or
(iv) the victim of the alleged offence was a citizen of a state that was allied with Kenya in
an armed conflict; or
(c) the person is, after commission of the offence, present in Kenya. (2) A trial authorised by this section to be conducted in Kenya shall be conducted in the High Court. Offences against Administration of Justice
9.

a. (2) A trial authorised by this section to be conducted in Kenya shall be conducted in the High Court. Offences against Administration of Justice
9.

Bribery of judges and officials
(1) A person who, being a judge or an official of the ICC, corruptly accepts, obtains, agrees to accept or
attempts to obtain for himself or any other person any money, valuable consideration, office, place
or employment—
(a) in respect of anything done or omitted, or to be done or omitted, by him in his official
capacity; or
(b) with intent to interfere in any other way with the administration of justice of the ICC, is
guilty of an offence and liable on conviction to imprisonment for a term of not more than
fourteen years. (2) A person who corruptly gives or offers to a judge or an official of the ICC
any money, valuable consideration, office, place or employment—
(a) in respect of anything done or omitted, or to be done or omitted, by him in his official
capacity; or
(b) with intent to interfere in any other way with the administration of justice of the ICC, is
guilty of an offence and liable on conviction to imprisonment for a term of not more than
fourteen years. 5

e administration of justice of the ICC, is
guilty of an offence and liable on conviction to imprisonment for a term of not more than
fourteen years. 5

International Crimes Act (Cap. 60) Kenya
10. Obstructing justice
(1) A person who wilfully attempts in any manner to obstruct, pervert or defeat the course of justice of
the ICC is guilty of an offence and liable on conviction to imprisonment for a term of not more than
five years. (2) Without limiting the generality of subsection (1), a person shall be deemed wilfully to attempt to
obstruct, pervert or defeat the course of justice if, in any existing or proposed proceedings of the
ICC, he—
(a) dissuades or attempts to dissuade a person by threats, bribes or other corrupt means from
giving evidence; or
(b) accepts, obtains, agrees to accept or attempts to obtain a bribe or other corrupt consideration
to abstain from giving evidence. 11. Obstructing officials
A person who resists or wilfully obstructs an official of the ICC in the execution of his duty, or any person
lawfully acting in aid of such an official, is guilty of an offence and liable on conviction to imprisonment
for a term of not more than two years. 12.

awfully acting in aid of such an official, is guilty of an offence and liable on conviction to imprisonment
for a term of not more than two years. 12.

Perjury
(1) A person who, with intent to mislead, makes a false statement under oath or solemn affirmation
before a judge of the ICC or an official of that Court who is authorized by the Court to permit
statements to be made before him, knowing that the statement is false, is guilty of the offence of
perjury and liable on conviction to imprisonment for a term of not more than seven years. (2) Subsection (1) shall apply—
(a) whether or not the statement is made in judicial proceedings of the ICC; and
(b) whether the statement is made by affidavit, solemn declaration or deposition or orally. (3) Subsection (1) shall not apply to a statement that is made by a person who is not specially
permitted, authorized or required by law to make that statement. 13.

(1) shall not apply to a statement that is made by a person who is not specially
permitted, authorized or required by law to make that statement. 13.

Witness giving contradictory evidence
(1) A person who—
(a) being a witness in any proceedings of the ICC, gives evidence with respect to any matter of
fact or knowledge;
(b) later, in any proceedings of the Court, gives evidence that is contrary to his previous
evidence; and
(c) in giving his evidence in either proceedings, does so with intent to mislead, is guilty of an
offence and liable on conviction to imprisonment for a term of not more than two years,
whether or not the prior or later evidence is true. (2) In this section, "evidence" does not include evidence that is not material. (3) If a person is charged with an offence under this section, a certificate that specifies with reasonable
particularity the proceedings in which the person is alleged to have given the evidence in respect of
which the offence is charged shall be evidence that it was given in proceedings of the ICC. (4) A certificate referred to in subsection (3) shall be admissible without proof of the signature or
official character of the person by whom the certificate purports to be signed, if it purports to
6

ll be admissible without proof of the signature or
official character of the person by whom the certificate purports to be signed, if it purports to
6

International Crimes Act (Cap. 60) Kenya
be signed by the Registrar of the ICC or another official having the custody of the record of the
proceedings concerned or by his lawful deputy. 14. Fabricating evidence
Every person who, with intent to mislead, fabricates anything with intent that it be used as evidence in
any existing or proposed proceedings of the ICC, by any means other than perjury or incitement to perjury,
is guilty of an offence and liable on conviction to imprisonment for a term of not more than seven years. 15.

r than perjury or incitement to perjury,
is guilty of an offence and liable on conviction to imprisonment for a term of not more than seven years. 15.

Offences relating to affidavits
A person who, in respect of any existing or proposed proceedings of the ICC—
(a) signs a document that purports to be an affidavit or statutory declaration and to have been sworn or
declared before him when the document was not so sworn or declared or when he knows that he has
no authority to administer the oath or declaration;
(b) uses or offers for use any document writing purporting to be an affidavit or statutory declaration
that he knows was not sworn or declared, as the case may be, by the affiant or declarant or before a
person authorized to administer the oath or declaration; or
(c) signs as affiant or declarant a document that purports to be an affidavit or statutory declaration and
to have been sworn or declared by him, as the case may be, when the document was not so sworn
or declared, is guilty of an offence and liable on conviction to imprisonment for a term of not more
than two years. 16.

the document was not so sworn
or declared, is guilty of an offence and liable on conviction to imprisonment for a term of not more
than two years. 16.

Intimidation
Every person who, wrongfully and without lawful authority—
(a) for the purpose of compelling another person to abstain from doing anything that the person has a
lawful right to do; or
(b) to do anything that the person has a lawful right to abstain from doing, in relation to any
proceedings of the ICC, causes the person reasonably, in all the circumstances, to fear for their
safety or the safety of anyone known to the person is guilty of an offence and liable on conviction to
imprisonment for a term of not more than five years. 17. Retaliation against witnesses
(1) A person who, by act or omission, does any thing against a person or a member of the person’s
family in retaliation for the person’s having given testimony before the ICC is guilty of an offence
and liable on conviction to imprisonment for a term of not more than five years. (2) A person who conspires or attempts to commit, or is an accessory after the fact in relation to,
or counsels in relation to, an offence under subsection (1) is guilty of an offence and liable on
conviction to imprisonment for a term of not more than five years. 18.

ation to, an offence under subsection (1) is guilty of an offence and liable on
conviction to imprisonment for a term of not more than five years. 18.

Jurisdiction to try offences under sections 9 to 17
(1) A person who is alleged to have committed an offence under any of sections 9 to 17 may be tried
and punished in Kenya for that offence if—
(a) the act or omission constituting the offence is alleged to have been committed in Kenya or
on board an aircraft or vessel which is registered in Kenya; or
(b) at the time the offence is alleged to have been committed, the person was a Kenyan citizen or
was employed by Kenya in a civilian or military capacity; or
(c) the person is, after commission of the offence, present in Kenya. 7

Kenyan citizen or
was employed by Kenya in a civilian or military capacity; or
(c) the person is, after commission of the offence, present in Kenya. 7

International Crimes Act (Cap. 60) Kenya
(2) A trial authorised by this section to be conducted in Kenya may be conducted in any court of
competent jurisdiction. 19.

rimes Act (Cap. 60) Kenya
(2) A trial authorised by this section to be conducted in Kenya may be conducted in any court of
competent jurisdiction. 19.

Co-operation as regards offences against administration of justice
(1) If the ICC makes a request for assistance in any investigation or proceedings involving an offence
against the administration of justice, that request shall be dealt with—
(a) in the case of a request for surrender—in the manner provided in Parts III and IV, which Parts
shall apply with any necessary modifications and subject to any contrary provision in the
Rome Statute or the ICC Rules;
(b) in the case of a request for enforcement of an order requiring reparation or the payment of a
fine or a forfeiture order—in the manner provided in Parts III and VI, which Parts shall apply
with any necessary modifications and subject to any contrary provision in the Rome Statute
or the ICC Rules;
(c) in the case of a request for transit—in the manner provided in sections 131 to 133 and 145 to
151, which sections shall apply with any necessary modifications and subject to any contrary
provision in the Rome Statute or the ICC Rules; and
(d) in the case of a request for any other type of assistance—in the manner provided in Parts III
and V, which Parts (and, if applicable, Part VIII) shall apply with any necessary modifications
and subject to any contrary provision in the Rome Statute or the ICC Rules.

nd, if applicable, Part VIII) shall apply with any necessary modifications
and subject to any contrary provision in the Rome Statute or the ICC Rules.

(2) In addition to the grounds of refusal or postponement specified in Parts IV and V, a request for
surrender or other assistance that relates to an offence involving the administration of justice may
be refused if, in the opinion of the Cabinet Secretary or the Director of Public Prosecutions, as
the case may be, there are exceptional circumstances that would make it unjust or oppressive to
surrender the person or give the assistance requested. (3) Where, pursuant to subsection (2), the Cabinet Secretary or the Director of Public Prosecutions is
of the opinion that there are exceptional circumstances that would make it unjust or oppressive
to surrender the person or give the assistance requested, the Cabinet Secretary or the Director of
Public Prosecutions, as the case may be, shall give the reasons underlying his opinion. [Act No. 19 of 2023, Sch.]
Part III – GENERAL PROVISIONS RELATING TO REQUESTS FOR ASSISTANCE
20.

ay be, shall give the reasons underlying his opinion. [Act No. 19 of 2023, Sch.]
Part III – GENERAL PROVISIONS RELATING TO REQUESTS FOR ASSISTANCE
20.

Requests for assistance
(1) This Part shall apply to a request by the ICC for assistance that is made under—
(a) Part 9 of the Rome Statute, in relation to—
(i) the provisional arrest, the arrest, and the surrender to the ICC of a person in relation
to whom the ICC has issued an arrest warrant or given a judgment of conviction;
(ii) the identification and whereabouts of persons or the location of items;
(iii) the taking of evidence, including testimony under oath, and the production of
evidence, expert opinions, and reports necessary to the ICC;
(iv) the questioning of any person being investigated or prosecuted;
(v) the service of documents, including judicial documents;
(vi) facilitating the voluntary appearance of persons as witnesses or experts before the
ICC;
8

he service of documents, including judicial documents;
(vi) facilitating the voluntary appearance of persons as witnesses or experts before the
ICC;
8

International Crimes Act (Cap.

International Crimes Act (Cap.

60) Kenya
(vii) the temporary transfer of prisoners;
(viii) the examination of places or sites, including the exhumation and examination of
grave sites;
(ix) the execution of searches and seizures;
(x) the provision of records and documents, including official records and documents;
(xi) the protection of victims and witnesses and the preservation of evidence;
(xii) the identification, tracing and freezing, or seizure of proceeds, property and assets,
and instrumentalities of crimes for the purpose of eventual forfeiture, without
prejudice to the rights of bona fide third parties; or
(xiii) any other type of assistance that is not prohibited by the law of Kenya, with a view to
facilitating the investigation and prosecution of crimes within the jurisdiction of the
ICC; or
(b) any of the following provisions of the Rome Statute—
(i) paragraph 8 of article 19 (which relates to various steps that the Prosecutor may take
with the authority of the ICC);
(ii) article 56 (which relates to various measures that can be taken by the Pre-Trial
Chamber);
(iii) article 64 (which relates to various measures that can be taken by the Trial Chamber);
(iv) article 76 (which relates to the imposition of sentence by the Trial Chamber);
(v) article 109 (which relates to the enforcement of fines and forfeiture measures).

hich relates to the imposition of sentence by the Trial Chamber);
(v) article 109 (which relates to the enforcement of fines and forfeiture measures).

(2) Nothing in this section—
(a) limits the type of assistance that the ICC may request under the Rome Statute or the ICC
Rules (whether in relation to the provision of information or otherwise); or
(b) prevents the provision of assistance to the ICC otherwise than under this Act, including
assistance of an informal nature. [Cf. Rome Statute, articles 86, 87(1)(a), 93(1).]
21. Requests to be made through authorised channel
(1) A request for assistance shall be made through an authorised channel and—
(a) in the case of a request to which Part IV applies, be transmitted to the Cabinet Secretary; or
(b) in any other case, be transmitted to the Director of Public Prosecutions or a person
authorised by the Director of Public Prosecutions to receive requests. (2) In this section, "authorised channel" means—
(a) the diplomatic channel to the Cabinet Secretary responsible for foreign affairs; or
(b) any other appropriate channel that Kenya may designate at the time it ratifies the Rome
Statute or at any subsequent time in accordance with the ICC Rules. (3) This section has effect subject to section 22. [Cf: Rome Statute, articles 87(1)(a) and (b)]
[Act No. 19 of 2023, Sch.]
9

ance with the ICC Rules. (3) This section has effect subject to section 22. [Cf: Rome Statute, articles 87(1)(a) and (b)]
[Act No. 19 of 2023, Sch.]
9

International Crimes Act (Cap. 60) Kenya
22. Urgent requests
(1) In urgent cases a request for assistance (including a request for provisional arrest) may be—
(a) made using any medium capable of delivering a written record; or
(b) transmitted through the International Criminal Police Organisation or any other appropriate
regional organisation, instead of through an authorised channel (as defined in section 21). (2) If a request is made or transmitted in the first instance in the manner specified in subsection (1), it
shall be followed as soon as practicable by a formal request transmitted in the manner specified in
section 21. [Cf. Rome Statute articles 87.1(b), 91(1), 96(1).]
23. Execution of requests
(1) If the ICC makes a request for assistance, the request shall be dealt with in accordance with the
relevant procedure under the law of Kenya (as provided in this Act).

a request for assistance, the request shall be dealt with in accordance with the
relevant procedure under the law of Kenya (as provided in this Act).

(2) If the request for assistance specifies that it should be executed in a particular manner that is not
prohibited by Kenyan law or by using a particular procedure that is not prohibited by Kenyan law,
the Director of Public Prosecutions or the Cabinet Secretary, as the case may be, shall use his best
endeavours to ensure that the request is executed in that manner or using that procedure, as the
case may require. [Cf. Rome Statute articles 88, 99(1)]
[Act No. 19 of 2023, Sch.]
24.

uest is executed in that manner or using that procedure, as the
case may require. [Cf. Rome Statute articles 88, 99(1)]
[Act No. 19 of 2023, Sch.]
24.

Consultation
(1) The Director of Public Prosecutions or the Cabinet Secretary, as the case may be, shall consult with
the ICC without delay if—
(a) a request for assistance is received from the ICC that does not contain or is not accompanied
by the appropriate information or the appropriate documents specified in articles 87, 91, 92,
93, or 96 of the Rome Statute;
(b) the ICC has not provided sufficient information for a request for assistance to be executed;
(c) in the case of a request for surrender—
(i) the person sought cannot be located in Kenya; or
(ii) it appears that the person in Kenya is clearly not the person named in the warrant or
judgment, as the case may be;
(d) execution of a request for assistance in its current form would require the breach of an
existing treaty obligation to another State; or
(e) for any other reason there are or may be difficulties with the execution of a request for
assistance received from the ICC.

n to another State; or
(e) for any other reason there are or may be difficulties with the execution of a request for
assistance received from the ICC.

(2) Before refusing any request for assistance, the Director of Public Prosecutions or the Cabinet
Secretary, as the case may be, shall consult with the ICC to ascertain whether the assistance sought
could be provided—
(a) subject to conditions; or
(b) at a later date or in an alternative manner. 10

he ICC to ascertain whether the assistance sought
could be provided—
(a) subject to conditions; or
(b) at a later date or in an alternative manner. 10

International Crimes Act (Cap. 60) Kenya
(3) Without limiting the types of conditions under which assistance may be provided, the Director of
Public Prosecutions may agree to the transmission of documents or information to the Prosecutor
on a confidential basis, on the condition that the Prosecutor will use them solely for the purpose of
generating new evidence. (4) If the Director of Public Prosecutions transmits documents or information subject to the condition
specified in subsection (3), the Director of Public Prosecutions may subsequently consent to the
disclosure of such documents or information for use as evidence under the provisions of Parts 5 and
6 of the Rome Statute and in accordance with the ICC Rules. [Cf. Rome Statute, articles 93 (5), 93 (8)(b) and (c), 97]
[Act No. 19 of 2023, Sch.]
25. Confidentiality of request
(1) A request for assistance and any documents supporting the request shall be kept confidential by the
Kenyan authorities who deal with the request, except to the extent that the disclosure is necessary
for execution of the request.

confidential by the
Kenyan authorities who deal with the request, except to the extent that the disclosure is necessary
for execution of the request.

(2) Without limiting the generality of subsection (1), if the ICC requests that particular information
that is made available with a request for assistance be provided and handled in a manner that
protects the safety and physical or psychological well-being of any victims, potential witnesses, and
their families, the Kenyan authorities shall use their best endeavours to give effect to that request. (3) In this section, "Kenyan authorities" means—
(a) the Director of Public Prosecutions;
(b) the Cabinet Secretary;
(c) every member of the National Police Service;
(d) every prison officer; and
(e) every employee of or contractor engaged by a Kenyan agency that is authorised to deal with
the request. [Cf. Rome Statute, articles 87(3) and 87(4)]
[Act No. 19 of 2023, Sch.]
26. Response to be sent to ICC
(1) The Director of Public Prosecutions or the Cabinet Secretary, as the case may be, shall notify the
ICC, without delay, of his response to a request for assistance and of the outcome of any action that
has been taken in relation to it.

all notify the
ICC, without delay, of his response to a request for assistance and of the outcome of any action that
has been taken in relation to it.

(2) If the Director of Public Prosecutions or the Cabinet Secretary decides, in accordance with the Rome
Statute and this Act, to refuse or postpone the assistance requested, in whole or in part, the notice
to the ICC shall set out the reasons for the decision. (3) If the request for assistance cannot be executed for any other reason, the notice to the ICC shall set
out the reasons for the inability or failure to execute the request. (4) In the case of an urgent request for assistance, any documents or evidence produced in response
shall, at the request of the ICC, be sent urgently to it. 11

case of an urgent request for assistance, any documents or evidence produced in response
shall, at the request of the ICC, be sent urgently to it. 11

International Crimes Act (Cap. 60) Kenya
(5) Documents or evidence provided or produced in response to a request for assistance from the ICC
shall be transmitted to the ICC in their original language and form. [Cf. Rome Statute, articles 86, 90(8), 93(6)]
[Act No. 19 of 2023, Sch.]
27. Official capacity of person no bar to request
(1) The existence of any immunity or special procedural rule attaching to the official capacity of any
person shall not constitute a ground for—
(a) refusing or postponing the execution of a request for surrender or other assistance by the
ICC;
(b) holding that a person is ineligible for surrender, transfer, or removal to the ICC or another
State under this Act; or
(c) holding that a person is not obliged to provide the assistance sought in a request by the ICC. (2) Subsection (1) shall have effect subject to sections 62 and 115, but notwithstanding any other
enactment or rule of law. [Cf. Rome Statute, article 27(2).]
Part IV – ARREST AND SURRENDER OF PERSONS TO ICC
Request for Arrest and Surrender
28.

her
enactment or rule of law. [Cf. Rome Statute, article 27(2).]
Part IV – ARREST AND SURRENDER OF PERSONS TO ICC
Request for Arrest and Surrender
28.

Request for arrest and surrender
(1) This Part shall apply to a request made by the ICC under paragraph 1 of article 89 of the Rome
Statute for the arrest and surrender from Kenya of—
(a) a person in respect of whom the Pre-Trial Chamber has issued a warrant of arrest under
article 58 or article 60 of the Rome Statute for an international crime; or
(b) a person who has been convicted by the ICC of an international crime. (2) This Part shall apply to a request made under article 92 of the Rome Statute for the provisional
arrest of a person accused or convicted of an international crime. (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). [Cf. Rome Statute, articles 58, 60(5), 91(2)-(4), 92(1).]
29.

which prescribe restrictions on surrender and the execution of a request for
surrender). [Cf. Rome Statute, articles 58, 60(5), 91(2)-(4), 92(1).]
29.

Cabinet Secretary to request issue of arrest warrant
(1) If a request for surrender is received, other than a request for provisional arrest referred to
in section 28 (2), the Cabinet Secretary shall, if satisfied that the request is supported by the
12

than a request for provisional arrest referred to
in section 28 (2), the Cabinet Secretary shall, if satisfied that the request is supported by the
12

International Crimes Act (Cap. 60) Kenya
information and documents required by article 91 of the Rome Statute, notify a Judge of the High
Court in writing that it has been made and request that the Judge issue a warrant for the arrest of
the person whose surrender is sought. (2) If a notice is sent to a Judge under subsection (1), the Cabinet Secretary shall also send to the Judge
a copy of the request and supporting documents. [Cf. Rome Statute, article 59(1).]
30. Issue of arrest warrant
(1) After receiving a request under section 29, the Judge may issue a warrant in the prescribed form for
the arrest of the person if the Judge is satisfied on the basis of information presented to him that—
(a) the person is or is suspected of being in Kenya or may come to Kenya;
and
(b) there are reasonable grounds to believe that that person is the person to whom the request
for surrender from the ICC relates. (2) The Judge shall give reasons for the issue or refusal to issue a warrant under subsection (1). 31. Cancellation of warrant
(1) The Cabinet Secretary may at any time, apply to High Court for the cancellation of the warrant.

under subsection (1). 31. Cancellation of warrant
(1) The Cabinet Secretary may at any time, apply to High Court for the cancellation of the warrant.

(2) If under this section the High Court orders the cancellation of a warrant, the warrant ceases to have
effect and any person arrested under the warrant shall be released, unless the person is otherwise
liable to be detained in custody. Provisional Arrest in Certain Cases
32. Provisional arrest warrant
(1) A Judge of the High Court may issue a provisional warrant in the prescribed form for the arrest of a
person if the Judge is satisfied on the basis of the information presented to him that—
(a) a warrant for the arrest of a person has been issued by the ICC or, in the case of a convicted
person, a judgment of conviction has been given in relation to an international crime;
(b) the person named in the warrant or judgment is or is suspected of being in Kenya or may
come to Kenya; and
(c) it is necessary or desirable for an arrest warrant to be issued urgently. (2) A warrant may be issued under this section even though no request for surrender has yet been made
or received from the ICC. [Cf. Rome Statute, article 92.]
33.

may be issued under this section even though no request for surrender has yet been made
or received from the ICC. [Cf. Rome Statute, article 92.]
33.

Notice to be given to Cabinet Secretary
(1) If a Judge issues a provisional arrest warrant under section 32, the applicant for the warrant shall
report the issue of the warrant to the Cabinet Secretary without delay. (2) The applicant shall include in the report to the Cabinet Secretary a copy of the warrant issued by
the ICC, or the judgment of conviction, as applicable, and the other documentary evidence that the
applicant produced to the Judge. 13

rrant issued by
the ICC, or the judgment of conviction, as applicable, and the other documentary evidence that the
applicant produced to the Judge. 13

International Crimes Act (Cap. 60) Kenya
34.

International Crimes Act (Cap. 60) Kenya
34.

Procedure where provisional arrest warrant issued
(1) If a person has been arrested on a provisional arrest warrant issued under section 32, the following
provisions shall apply—
(a) the hearing of the proceedings shall not proceed until the High Court receives from the
Cabinet Secretary a notice in writing stating that a request for the surrender of the person
has been transmitted to the Cabinet Secretary in the manner specified in section 21;
(b) pending the receipt of the notice from the Cabinet Secretary, the proceedings may from time
to time be adjourned;
(c) the High Court shall set a date by which the notice is to be transmitted to it, and in so doing
shall have regard to—
(i) any provision in the ICC Rules that prescribes the maximum period for transmission
by the ICC of the request and supporting documents to the requested State;
(ii) if there is no such provision, the time it is likely to take for the ICC to prepare and
transmit the request and supporting documents to Kenya;
(iii) the time it is likely to take for the Cabinet Secretary to consider the request after
receipt and for the notice to be transmitted to the High Court;
(d) if the High Court does not receive the notice within the time fixed by the Court under
paragraph (c), and does not extend that time under subsection (2), the High Court shall
discharge the person.

within the time fixed by the Court under
paragraph (c), and does not extend that time under subsection (2), the High Court shall
discharge the person.

(2) The High Court may, from time to time, in its discretion, extend any time fixed by it under
subsection (1)(c). [Cf. Rome Statute, article 92(1).]
Remand and Bail
35. Procedure following arrest
(1) A person arrested on a warrant issued under section 30 or section 32 shall, unless sooner
discharged, be brought before the High Court as soon as possible. (2) The person—
(a) is not entitled to bail as of right; and
(b) shall not be permitted to go at large without bail. (3) If the High Court remands the person on bail, the Court may impose any conditions of bail it thinks
fit. (4) Without limiting the factors it may take into account in making a decision to grant bail, the High
Court shall have regard to the following—
(a) the gravity of the alleged crimes;
(b) whether there are urgent and exceptional circumstances that favour the grant of bail; and
(c) whether necessary safeguards exist to ensure that Kenya can fulfil its duty under the Rome
Statute to surrender the person to the ICC. 14

ail; and
(c) whether necessary safeguards exist to ensure that Kenya can fulfil its duty under the Rome
Statute to surrender the person to the ICC. 14

International Crimes Act (Cap. 60) Kenya
(5) In making a decision to grant bail, the High Court shall not be concerned to inquire whether any
warrant of arrest or judgment issued by the ICC was properly issued in accordance with the Rome
Statute. [Cf. Rome Statute, article 59 (2) - (4).]
36. Procedure for bail
(1) If an application for bail is made, the Cabinet Secretary shall notify the ICC, which may make
recommendations to the Cabinet Secretary, which shall be conveyed to the High Court. (2) Before rendering its decision, the High Court shall consider any recommendations that the ICC has
made, including any recommendations on measures to prevent the escape of the person. (3) If the person is granted bail, the Cabinet Secretary shall, if the ICC requests, provide periodic
reports to the ICC on the person’s bail status. (4) This section shall apply, with any necessary modifications, to any bail application made during the
period until the person is surrendered to the ICC or discharged according to law. [Cf. Rome Statute, article 59(2) - (6).]
37.

ication made during the
period until the person is surrendered to the ICC or discharged according to law. [Cf. Rome Statute, article 59(2) - (6).]
37.

Powers of High Court
In proceedings under this Part, except as expressly provided in this Act or in regulations made under this
Act, the High Court shall have the same jurisdiction and powers, and shall conduct the proceedings in
the same manner, as if the person were charged with an offence alleged to have been committed within
Kenyan jurisdiction. 38. Detention in place other than prison
(1) This section shall apply where the High Court orders the detention of a person at any time under
this Part. (2) If the High Court concludes that detaining the person in prison would risk the person’s life or
health or be undesirable for any reason, the Court may order that the person be held in custody—
(a) at the place where the person is for the time being; or
(b) at any other place that the Court considers appropriate, having regard to the risk or reason
involved. (3) The person may be held as specified in subsection (2) until—
(a) the person can be detained in a prison without risk to that person’s life or health;
(b) the reason for not detaining the person in prison no longer applies; or
(c) the person is surrendered or discharged according to law.

e or health;
(b) the reason for not detaining the person in prison no longer applies; or
(c) the person is surrendered or discharged according to law.

(4) In making the order specified in subsection (2), the High Court shall have regard to any
recommendations that the ICC may make regarding the place of the person’s detention. [Cf. Rome Statute, article 59(5).]
Eligibility for Surrender
39. Determination of eligibility for surrender
(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. 15

Court shall determine whether the
person is eligible for surrender in relation to the international crime or crimes for which surrender
is sought. 15

International Crimes Act (Cap. 60) Kenya
(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.

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. [Cf. Rome Statute, article 59(2).]
40. Adjournment of hearing
(1) The High Court may adjourn the hearing for such period as it considers reasonable to allow a
deficiency or deficiencies to be remedied if—
(a) a document or documents containing a deficiency or deficiencies of relevance to the
proceedings are produced; and
(b) the High Court considers the deficiency or deficiencies to be of a minor character. (2) Subsection (1) does not limit the circumstances in which the High Court may adjourn a hearing. 41.

ncy or deficiencies to be of a minor character. (2) Subsection (1) does not limit the circumstances in which the High Court may adjourn a hearing. 41.

Surrender by consent
(1) A person may at any time notify the High Court that he consents to being surrendered to the ICC for
the international crime or crimes for which his surrender is sought. (2) The Court may accept the notification of consent under subsection (1) if—
(a) the person is before the Court when notification of the consent to surrender is given;
(b) the person has been legally represented in the proceedings; and
(c) the Court is satisfied that the person has freely consented to the surrender in full knowledge
of its consequences. (3) Nothing in this Part prevents a person, in respect of whom a determination of eligibility for
surrender is made by the High Court under section 39, from subsequently notifying the Cabinet
Secretary that he consents to surrender. 16

gibility for
surrender is made by the High Court under section 39, from subsequently notifying the Cabinet
Secretary that he consents to surrender. 16

International Crimes Act (Cap. 60) Kenya
(4) A person arrested under a provisional warrant may consent to surrender before a request for
surrender is received, in which case—
(a) the Cabinet Secretary may make a surrender order as if a request for surrender had been
received; and
(b) section 34(1)(a) shall not apply. [Cf. Rome Statute, article 92(3).]
42. Procedure following determination on eligibility or consent to surrender
(1) This section shall apply if—
(a) the High Court has determined in accordance with section 39 that a person is eligible for
surrender; or
(b) a person has consented to surrender to the ICC in accordance with section 41.

cordance with section 39 that a person is eligible for
surrender; or
(b) a person has consented to surrender to the ICC in accordance with section 41.

(2) If this section applies, the High Court shall—
(a) issue a warrant for the detention of the person in a prison or other place authorised in
accordance with section 38, pending the surrender of the person to the ICC or his discharge
according to law;
(b) send to the Cabinet Secretary a copy of the warrant of detention and such report on the case
as the court thinks fit;
(c) inform a person to whom subsection (1)(a) applies that—
(i) subject to section 65, the person will not be surrendered until the expiration of fifteen
days after the date of the issue of the warrant;
(ii) during that time the person has the right to make an application for a writ of habeas
corpus; and
(iii) the person has the right to lodge an appeal under section 63;
(d) inform a person to whom subsection (1) applies that the Cabinet Secretary is to determine
whether to issue a surrender order before the person can be surrendered to the ICC; and
(e) inform the person that if a surrender order is made and the person is not removed within two
months, the person may apply to be discharged under section 69.

the person that if a surrender order is made and the person is not removed within two
months, the person may apply to be discharged under section 69.

(3) If the High Court issues a warrant under subsection (2), the Court may grant bail to the person in
accordance with section 35. (4) If the High Court is not satisfied that the person is eligible for surrender, it shall discharge the
person, unless under section 69 it orders that the person continue to be detained or issues a warrant
for the arrest and detention of the person, pending the determination of an appeal under section
63. Surrender and Temporary Surrender
43. Cabinet Secretary to determine whether person to be surrendered
(1) If the High Court issues a warrant for the detention of a person under section 42, the Cabinet
Secretary shall determine whether to order that the person be surrendered, giving reasons to the
High Court for any refusal to order surrender. 17

net
Secretary shall determine whether to order that the person be surrendered, giving reasons to the
High Court for any refusal to order surrender. 17

International Crimes Act (Cap. 60) Kenya
(2) The Cabinet Secretary shall make a surrender order in respect of the person concerned unless—
(a) the Cabinet Secretary is satisfied that surrender of the person must be refused because a
mandatory restriction on surrender specified in section 51 (1) applies;
(b) the Cabinet Secretary is satisfied that one of the discretionary restrictions on surrender
specified in section 51(2) applies and that it is appropriate in the circumstances that
surrender be refused;
(c) the Cabinet Secretary postpones the execution of a request for surrender in accordance with
section 52; or
(d) the Cabinet Secretary makes a temporary surrender order under section 45.

e execution of a request for surrender in accordance with
section 52; or
(d) the Cabinet Secretary makes a temporary surrender order under section 45.

(3) The Cabinet Secretary 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.

ication, 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 Cabinet Secretary; or
(b) a person to whom section 39 applies but who has, in accordance with section 65, notified the
Cabinet Secretary 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
international 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.

ection 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 Cabinet Secretary makes a surrender order in respect of a person described in section 4(2),
the Cabinet Secretary 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 Cabinet Secretary has made a surrender order, the Cabinet Secretary
shall ensure that the person is delivered up to the ICC without delay in accordance with this Act and
any applicable ICC Rules. [Cf. Rome Statute, article 59(1) and 59(7).]
18

son is delivered up to the ICC without delay in accordance with this Act and
any applicable ICC Rules. [Cf. Rome Statute, article 59(1) and 59(7).]
18

International Crimes Act (Cap. 60) Kenya
44. Surrender order may take effect at later date
(1) This section shall apply if the Cabinet Secretary has determined 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 Cabinet Secretary 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. [Cf. Rome Statute, article 89(4).]
45.

for the surrender of the person that is to come into effect when the person ceases
to be liable to be detained. [Cf. Rome Statute, article 89(4).]
45.

Temporary surrender to ICC
(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 Cabinet Secretary 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 Cabinet Secretary with the ICC, the ICC requests that the person be
surrendered temporarily. (2) The Cabinet Secretary may make a temporary surrender order in respect of the person concerned. (3) Before making a temporary surrender order, the Cabinet Secretary 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 Cabinet Secretary thinks appropriate. [Cf.

while travelling to and from and while in the ICC’s jurisdiction;
(c) such other matters, if any, that the Cabinet Secretary thinks appropriate. [Cf.

Rome Statute, article 89(4).]
46. Decision to return to Kenya after trial
(1) The Cabinet Secretary 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 Cabinet Secretary 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. 19

ary 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. 19

International Crimes Act (Cap. 60) Kenya
47. Request to return to ICC after temporary surrender
(1) The Cabinet Secretary 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
imprisonment;
(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 Cabinet Secretary 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. 48.

es 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. 48.

Kenyan sentences continue to run
(1) If a person who is subject to a sentence of imprisonment is released from a Kenyan prison under a
surrender order made under section 43 or a temporary surrender order made under section 45, the
person shall be treated, while in custody in connection with the request or the crime to which the
request related, as the case may be (including custody outside Kenya), as being in custody for the
purposes of the Kenyan sentence, which, subject to subsection (3), shall continue to run. (2) If, while a person is within the jurisdiction of the ICC under a temporary surrender order or
surrender order, the person ceases to be liable to be detained in a Kenyan prison, the Cabinet
Secretary shall inform the ICC that any undertakings relating to custody referred to in section 45(3)
(a) and section 45(3)(b) no longer need to be complied with. (3) Nothing in this section affects the ICC’s power to direct that any sentence of imprisonment that it
imposes shall be cumulative on a sentence imposed under Kenyan law. 49.

on affects the ICC’s power to direct that any sentence of imprisonment that it
imposes shall be cumulative on a sentence imposed under Kenyan law. 49.

Form and execution of surrender order or temporary surrender order
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—
(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 National Police Service, or a prison officer; or
(ii) if the person to be surrendered is on bail, authorise any member of the National Police
Service to take the person into custody;
(c) authorise the member of the National Police Service 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 Cabinet Secretary, duly authorised to receive the person to be surrendered in the name of and
on behalf of the ICC; and
20

o is, in the opinion of
the Cabinet Secretary, duly authorised to receive the person to be surrendered in the name of and
on behalf of the ICC; and
20

International Crimes Act (Cap. 60) Kenya
(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. 50. Surrender to State of enforcement
(1) If a request for surrender relates to a convicted person who has escaped from custody and the ICC
directs, under article 111 of the Rome Statute, that the person be delivered to the State in which the
person was serving the sentence or to any other State designated by the ICC, the Cabinet Secretary
shall arrange for the person to be delivered to the State specified in the direction. (2) In any case in which subsection (1) applies, the surrender order may specify that the person be
surrendered into the custody of duly authorised representatives of the State specified in the
direction. [Cf. Rome Statute, article 111.]
Restrictions on Surrender
51.

the custody of duly authorised representatives of the State specified in the
direction. [Cf. Rome Statute, article 111.]
Restrictions on Surrender
51.

Refusal of surrender
(1) The Cabinet Secretary shall refuse a request by the ICC for the surrender of a person if—
(a) there have been previous proceedings against the person and section 53 (3) applies;
(b) the ICC determines that the case is inadmissible and section 55(3) or section 56(2) applies; or
(c) section 62(2) applies. (2) The Cabinet Secretary may refuse a request by the ICC for the surrender of a person if—
(a) there are competing requests from the ICC and a State that is not a party to the Rome Statute
relating to the same conduct and section 59 (4) applies; or
(b) there are competing requests from the ICC and a State that is not a party to the Rome Statute
relating to different conduct and section 60 (3) applies. (3) The only grounds on which surrender to the ICC may be refused are those specified in this section
and, if applicable, section 19(2), and no restrictions on surrender specified in the Extradition
(Commonwealth Countries) Act (Cap. 77) or the Extradition (Contiguous and Foreign Countries) Act
(Cap. 76) shall apply in relation to a request for surrender from the ICC. 52.

Act (Cap. 77) or the Extradition (Contiguous and Foreign Countries) Act
(Cap. 76) shall apply in relation to a request for surrender from the ICC. 52.

Postponement of execution of request for surrender
(1) The Cabinet Secretary may postpone the execution of a request for surrender under this Part at any
time before the person sought is surrendered if, and only if—
(a) a ruling on admissibility of the kind specified in section 53(1) or section 55 (1) or section 56
is pending before the ICC;
(b) the request would interfere with an investigation or prosecution for a different offence
against Kenyan law, as provided in section 54; or
(c) a request of the kind referred to in section 62(1)(c) is made to the ICC. (2) Even if a case is one to which subsection (1) applies, the Cabinet Secretary may decide not to
postpone the execution of the request; and, in that event, the Cabinet Secretary 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. 21

ender
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. 21

International Crimes Act (Cap. 60) Kenya
(3) If the Cabinet Secretary postpones the execution of the request, the postponement may be for a
reasonable time and may, if the Cabinet Secretary considers it desirable, be extended from time to
time. (4) A decision by the Cabinet Secretary to postpone the execution of a request—
(a) does not limit or affect—
(i) the High Court’s ability to accept notification of consent to the surrender;
(ii) the ability to continue to detain a person under any warrant issued under this Part;
and
(b) does not affect the validity of any act that has been done or any warrant or order made under
this Part before the decision was made. (5) If no decision on the execution of the request for surrender is made within six months after the date
of the Minister’s decision to postpone the execution of the request, the person may apply to a Judge
of the High Court to be discharged.

fter the date
of the Minister’s decision to postpone the execution of the request, the person may apply to a Judge
of the High Court to be discharged.

(6) If an application to be discharged is made under subsection (5), the Judge may, on proof that
reasonable notice of the intention to make the application has been given to the Cabinet Secretary,
unless sufficient cause is shown against the discharge—
(a) discharge any order made under this Act; and
(b) order the discharge of the person from the place where the person is detained, if the person
is not liable to be detained under any other order for detention. 53. Previous proceedings against person sought
(1) Where the person whose surrender is sought alleges that—
(a) the case is one to which paragraph 1 of article 20 of the Rome Statute applies (because it
relates to conduct that formed the basis of crimes for which the person has been convicted or
acquitted by the ICC); or
(b) the person has been tried by another court for conduct also proscribed under article 6, 7 or 8
of the Rome Statute and the case is not one to which paragraph 3(a) and (b) of article 20 of
the Rome Statute applies, the Cabinet Secretary shall immediately consult with the ICC to
determine if there has been a relevant ruling on admissibility under the Rome Statute.

the Cabinet Secretary shall immediately consult with the ICC to
determine if there has been a relevant ruling on admissibility under the Rome Statute.

(2) If the ICC has ruled that the case is admissible, surrender cannot be refused on the ground there
have been previous proceedings. (3) If the ICC has ruled that the case is inadmissible under article 20 of the Rome Statute, surrender
shall be refused on the ground that there have been previous proceedings. (4) If an admissibility ruling is pending, the Cabinet Secretary may postpone the execution of a request
until the ICC has made a determination on admissibility. [Cf. Rome Statute, articles 20(1), 20(3), 89(2).]
54. Ongoing Kenyan investigation or proceedings involving different conduct
(1) Where the ICC makes a request for surrender that would interfere with any investigation or
proceedings in Kenya involving different conduct, the Cabinet Secretary may, after consultation
with the ICC—
(a) proceed with the execution of the request in accordance with section 52(2), despite the
Kenyan investigation or proceedings; or
22

n
with the ICC—
(a) proceed with the execution of the request in accordance with section 52(2), despite the
Kenyan investigation or proceedings; or
22

International Crimes Act (Cap. 60) Kenya
(b) postpone the execution of the request until the Kenyan investigation or proceedings have
been finally disposed of. (2) Nothing in this section limits or affects section 44 which allows the Cabinet Secretary, 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. [Cf. Rome Statute, article 94.]
55. Person being prosecuted in Kenya for same conduct
(1) This section shall apply if—
(a) the ICC makes a request for surrender;
(b) the request relates to conduct that would constitute an offence under Kenyan law;
(c) either—
(i) the conduct is being investigated or prosecuted in Kenya; or
(ii) the conduct had been investigated in Kenya and a decision was made not to prosecute
the person sought, that decision not being due to the unwillingness or genuine
inability to prosecute;
and
(d) a challenge to the admissibility of the case is being or has been made to the ICC under
paragraph 2(b) of article 19 of the Rome Statute.

ute;
and
(d) a challenge to the admissibility of the case is being or has been made to the ICC under
paragraph 2(b) of article 19 of the Rome Statute.

(2) If this section applies, the Cabinet Secretary may postpone the execution of the request for
surrender until the ICC has made its determination on admissibility. (3) If the ICC determines that the case is inadmissible, surrender shall be refused. (4) If the ICC determines that the case is admissible and there is no other ground for refusing or
postponing the request, the request shall continue to be dealt with under this Part. [Cf. Rome Statute, articles 17(1), 19(2)(b), 95.]
56. Other challenges to admissibility
(1) If the ICC is considering an admissibility challenge under article 18 or article 19 of the Rome
Statute, other than a challenge of the kind referred to in section 53 or section 55, the Cabinet
Secretary may postpone the execution of a request under this Part pending a determination by the
ICC. (2) If the ICC determines that the case is inadmissible, surrender shall be refused. (3) If the ICC determines that the case is admissible, and there is no other ground for refusing or
postponing the request, the request shall continue to be dealt with under this Part. [Cf. Rome statute, article 95.]
57.

other ground for refusing or
postponing the request, the request shall continue to be dealt with under this Part. [Cf. Rome statute, article 95.]
57.

Request from ICC and other State relating to same conduct
If a request for surrender of a person is received from the ICC and one or more States also request the
extradition of the person for the same conduct that forms the basis of the crime for which the ICC seeks
the person’s surrender, the Cabinet Secretary —
(a) shall notify the ICC and the requesting State of that fact; and
23

e crime for which the ICC seeks
the person’s surrender, the Cabinet Secretary —
(a) shall notify the ICC and the requesting State of that fact; and
23

International Crimes Act (Cap. 60) Kenya
(b) shall determine, in accordance with section 58 or section 59, but without regard to any provision
of the Extradition (Commonwealth Countries) Act (Cap. 77) or the Extradition (Contiguous and
Foreign Countries) Act (Cap.76), whether the person is to be surrendered to the ICC or to the
requesting State. [Cf. Rome Statute, article 90(1).]
58. Procedure where competing request from State Party
(1) If section 57 applies and the requesting State is a party to the Rome Statute, priority shall be given
to the request from the ICC if—
(a) the ICC has, under article 18 or article 19 of the Rome Statute, made a determination that the
case in respect of which surrender is sought is admissible and that determination takes into
account the investigation or prosecution conducted by the requesting State in respect of its
request for extradition; or
(b) the ICC makes such a determination after receiving notification of the competing request. (2) If the request is one to which subsection (1)(b) relates, then, pending the ICC’s determination—
(a) the steps required to be taken under the Extradition (Commonwealth Countries) Act (Cap.

ion (1)(b) relates, then, pending the ICC’s determination—
(a) the steps required to be taken under the Extradition (Commonwealth Countries) Act (Cap.

77) or the Extradition (Contiguous and Foreign Countries) Act (Cap. 76), as the case may be,
in relation to a request for extradition may continue to be taken; and
(b) no person may be surrendered under the relevant Act unless and until the ICC makes its
decision on admissibility and determines that the case is inadmissible. [Cf. Rome Statute, article 90(2).]
59. Procedure where competing request from non-State Party
(1) If section 57 applies and the requesting State is not a party to the Rome Statute, priority shall be
given to the request for surrender from the ICC if—
(a) Kenya is not under an international obligation to extradite the person to the requesting
State; and
(b) the ICC has determined under article 18 or article 19 of the Rome Statute that the case is
admissible. (2) If section 57 applies and the requesting State is not a party to the Rome Statute, the request for
extradition may continue to be dealt with if—
(a) Kenya is not under an international obligation to extradite the person to the requesting
State; and
(b) the ICC has not yet determined under article 18 and article 19 of the Rome Statute that the
case is admissible.

erson to the requesting
State; and
(b) the ICC has not yet determined under article 18 and article 19 of the Rome Statute that the
case is admissible.

(3) Notwithstanding subsection (2), no person may be surrendered under the Extradition
(Commonwealth Countries) Act (Cap. 77) or the Extradition (Contiguous and Foreign Countries)
Act (Cap. 76), as the case may be, unless and until the ICC makes its decision on admissibility and
determines that the case is inadmissible. (4) If section 57 applies, and the requesting State is not a party to the Rome Statute, and Kenya is
under an international obligation to extradite the person to the requesting State, the Cabinet
Secretary shall determine whether to surrender the person to the ICC or extradite the person to the
requesting State. 24

requesting State, the Cabinet
Secretary shall determine whether to surrender the person to the ICC or extradite the person to the
requesting State. 24

International Crimes Act (Cap. 60) Kenya
(5) In making the determination under subsection (4), the Cabinet Secretary shall consider all the
relevant factors, including—
(a) the respective dates of the requests;
(b) the interests of the requesting State, including, if relevant, whether the crime was committed
in its territory and the nationality of the victims and of the person sought; and
(c) the possibility of subsequent surrender between the ICC and the requesting State. [Cf. Rome Statute, article 90(4) - (6).]
60. Request from ICC and other State relating to different conduct
(1) If a request for surrender of a person is received from the ICC and a request for the extradition
of that person is received from one or more States for conduct other than that which constitutes
the crime for which the ICC seeks the person’s surrender, the Cabinet Secretary shall determine
whether the person is to be surrendered to the ICC or to the requesting State. (2) If Kenya is not under an existing international obligation to extradite the person to the requesting
State, priority shall be given to the request from the ICC.

s not under an existing international obligation to extradite the person to the requesting
State, priority shall be given to the request from the ICC.

(3) If Kenya is under an existing international obligation to extradite the person to the requesting
State, the Cabinet Secretary shall determine whether to surrender the person to the ICC or to
extradite the person to the requesting State. (4) In making the determination under subsection (3), the Cabinet Secretary shall consider all the
relevant factors, including those matters specified in section 59, but shall give special consideration
to the relative seriousness of the offences for which surrender is sought. [Cf. Rome Statute, article 90(7).]
61. Notification of decision on extradition to requesting State
(1) If, following notification under article 90 of the Rome Statute, the ICC
has determined that a case is inadmissible and the Cabinet Secretary subsequently refuses
extradition of the person to the requesting State under the Extradition (Commonwealth Countries)
Act (Cap. 77) or the Extradition (Contiguous and Foreign Countries) Act (Cap. 76), as the case may
be, the Cabinet Secretary shall notify the ICC of this decision.

or the Extradition (Contiguous and Foreign Countries) Act (Cap. 76), as the case may
be, the Cabinet Secretary shall notify the ICC of this decision.

(2) The obligation in this section is in addition to the requirement in section 26 for the Cabinet
Secretary to respond formally to the request from the ICC. [Cf. Rome Statute, article 90(8).]
62. Conflict with obligations to another State
(1) Where—
(a) the ICC makes a request for surrender;
(b) the ICC has not previously made a final determination on whether or not article 98 of the
Rome Statute applies to that request; and
(c) a request is made to the ICC to determine whether or not article 98 of the Rome Statute
applies to the request for surrender, the Cabinet Secretary may postpone the request for
surrender until the ICC advises whether or not it intends to proceed with the request for
surrender. (2) If the ICC advises that it does not intend to proceed with the request, surrender shall be refused. 25

to proceed with the request for
surrender. (2) If the ICC advises that it does not intend to proceed with the request, surrender shall be refused. 25

International Crimes Act (Cap. 60) Kenya
(3) If the ICC advises that it intends to proceed with the request for surrender, and there is no other
ground for refusing or postponing the request, the request shall continue to be dealt with under this
Part. [Cf. Rome Statute, article 98.]
Appeals against Determinations of Eligibility for Surrender
63. Appeal on question of law by way of case stated
(1) If the High Court determines under section 39 that a person is or is not eligible for surrender in
relation to any crime for which surrender is sought, and either party considers the determination
erroneous in point of law, the party may appeal against the determination to the Court of Appeal on
a question of law only. (2) To lodge an appeal the party shall, within fifteen days after the determination, file in the office of
the court that made the determination a notice of appeal in the prescribed form. 64.

ithin fifteen days after the determination, file in the office of
the court that made the determination a notice of appeal in the prescribed form. 64.

Custody pending determination of appeal
(1) The High Court may order that the person who is the subject of the determination continue to be
detained or, as the case may be, issue a warrant for the arrest and detention of the person, pending
the determination of the appeal if—
(a) the High Court makes a determination under section 39; and
(b) immediately after the High Court makes the determination, either party informs the High
Court that the party intends to appeal against the determination. (2) The High Court or the Court of Appeal may order that the person who is the subject of the
determination continue to be detained or, as the case may be, issue a warrant for the arrest and
detention of the person, pending the determination of the appeal if—
(a) the High Court makes a determination under section 39; and
(b) either party files a notice of appeal against the determination.

of the appeal if—
(a) the High Court makes a determination under section 39; and
(b) either party files a notice of appeal against the determination.

(3) If a person is detained under an order made under this section or is arrested and detained under a
warrant issued under this section, sections 35 to 38 shall apply, with any necessary modifications,
to the detention of the person as if the appeal proceedings were proceedings under section 39 to
determine whether or not the person is eligible for surrender. 65. Waiver of rights to apply for habeas corpus or to lodge appeal
Without limiting the operation of section 41, a person whose surrender is sought may, by a waiver in the
prescribed form, waive the following rights—
(a) the right to make an application for a writ of habeas corpus within fifteen days after the issue of a
warrant of detention; and
(b) the right, in relation to any international crime or crimes for which the High Court has determined
that the person is eligible for surrender, to lodge an appeal under this Part. 66. Powers of court on appeal
(1) The Court of Appeal shall hear and determine the question or questions of law arising on any case
transmitted to it, and do one or more of the following things—
(a) reverse, confirm, or amend the determination in respect of which the case has been stated;
26

d to it, and do one or more of the following things—
(a) reverse, confirm, or amend the determination in respect of which the case has been stated;
26

International Crimes Act (Cap. 60) Kenya
(b) remit the determination to the High Court for reconsideration together with the opinion of
the Court of Appeal on the determination;
(c) remit the determination to the High Court with a direction that the proceedings to determine
whether the person is eligible for surrender be reheard;
(d) make any other order in relation to the determination that it thinks fit. (2) In hearing and determining the question or questions of law arising on any case transmitted to it,
the Court of Appeal—
(a) shall not have regard to any evidence of a fact or opinion that was not before the High Court
when it made the determination appealed against; and
(b) may in the same proceedings hear and determine any application for a writ of habeas corpus
made in respect of the detention of the person whose surrender is sought. 67.

oceedings hear and determine any application for a writ of habeas corpus
made in respect of the detention of the person whose surrender is sought. 67.

Further provisions relating to powers of court on appeal
(1) If the appeal is against a determination that a person is eligible for surrender, and the Court of
Appeal reverses the determination, the Court of Appeal shall also either—
(a) discharge the person; or
(b) remit the determination to the High Court with a direction that the proceedings to determine
whether the person is eligible for surrender be reheard. (2) If the appeal is against a determination that a person is eligible for surrender in respect of two
or more international crimes, and the Court of Appeal finds that the determination includes an
error of law that relates to only one or some of those international crimes, the Court of Appeal may
amend the determination and—
(a) discharge the person in respect of that international crime or those international crimes; or
(b) remit the determination to the High Court with a direction that the proceedings to determine
whether the person is eligible for surrender be reheard in respect of that international crime
or those international crimes.

proceedings to determine
whether the person is eligible for surrender be reheard in respect of that international crime
or those international crimes.

(3) Notwithstanding subsections (1) and (2), if an appeal is against a determination that a person is
eligible for surrender, and the Court of Appeal finds that there has been an error of law, it may
nevertheless decline to reverse or amend the determination in respect of which the case has been
stated if it considers that no substantial wrong or miscarriage of justice has occurred and that the
determination ought to be upheld. (4) If the appeal is against a determination that a person is not eligible for surrender, and the Court of
Appeal finds that the determination includes an error of law, the Court of Appeal may—
(a) exercise the powers of a High Court under section 42 as if it were the High Court (for which
purpose subsection (2)(c) of that section shall not apply); or
(b) if it remits the determination to the High Court, issue a warrant for the arrest and detention
of the person pending the High Court’s reconsideration of the determination or rehearing of
the proceedings to determine whether the person is eligible for surrender; and section 64 (3)
shall apply to any warrant issued under this paragraph as if the warrant were issued under
that section.

is eligible for surrender; and section 64 (3)
shall apply to any warrant issued under this paragraph as if the warrant were issued under
that section.

(5) Subsections (1), (2) and (4) do not limit the operation of section 66. Discharge of Person
27

(5) Subsections (1), (2) and (4) do not limit the operation of section 66. Discharge of Person
27

International Crimes Act (Cap. 60) Kenya
68. Discharge of person if Cabinet Secretary declines to order surrender
If the Cabinet Secretary determines under section 43 that the person is not to be surrendered, the
person shall be discharged from custody immediately unless the person is subject to any other order for
detention. 69. Discharge of person if not surrendered within two months
(1) This section shall apply if a person is not surrendered and conveyed out of Kenya under a surrender
order or a temporary surrender order made under this Part within two months—
(a) after the date of the issue of the warrant for the detention of the person under section 42
pending surrender, if no appeal or 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;
(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, after the date
that the proceedings are finally determined; or
(c) if a surrender order is made under section 44, after the date that the order takes effect.

he date
that the proceedings are finally determined; or
(c) if a surrender order is made under section 44, after the date that the order takes effect.

(2) If this section applies, the person may apply to a Judge of the High Court to be discharged. (3) If an application to be discharged is made under subsection (2), the Judge may, on proof that
reasonable notice of the intention to make the application has been given to the Cabinet Secretary,
unless sufficient cause is shown against the discharge—
(a) discharge the surrender order or temporary surrender order, as the case may be; and
(b) order the discharge of the person from the place where the person is detained, if the person
is not liable to be detained under any other order for detention. 70. Discharge of person if not re-surrendered
(1) If a person has been surrendered under a temporary surrender order made under section 45,
nothing in section 69 prevents an order being made under section 47. (2) Where—
(a) an order is made under section 47; and
(b) the person is not surrendered and conveyed out of Kenya under this Part within two months
after the date that the person ceases to be liable to be detained under the sentence of
imprisonment imposed by a Kenyan court, the person may apply to a Judge of the High Court
to be discharged.

iable to be detained under the sentence of
imprisonment imposed by a Kenyan court, the person may apply to a Judge of the High Court
to be discharged.

(3) If an application to be discharged is made under subsection (2), the Judge may, on proof that
reasonable notice of the intention to make the application has been given to the Cabinet Secretary,
unless sufficient cause is shown against the discharge—
(a) discharge the surrender order; and
(b) order the discharge of the person from the place where the person is detained, if the person
is not liable to be detained under any other order for detention. 28

ischarge of the person from the place where the person is detained, if the person
is not liable to be detained under any other order for detention. 28

International Crimes Act (Cap. 60) Kenya
71. Discharge of person under this Part does not preclude further proceedings
The discharge of a person under any provision of this Part does not preclude further proceedings under
this Act, whether or not they are based on the same conduct, to surrender the person to the ICC. [Cf. Rome Statute, article 92(4).]
Miscellaneous Provisions relating to Arrest and Surrender
72. Search and seizure on arrest
(1) If a person is arrested on a warrant issued under this Part, a member of the National Police Service
may, without further warrant, search the person arrested and may seize any thing, including any
sum of money, found on him or in his possession if the member of the National Police Service
believes on reasonable grounds that the thing on the person or in his possession may be evidence as
to the commission of any offence in relation to which the warrant to arrest was issued or for which
the surrender of the person is sought by the ICC. (2) If there is no suitable searcher available at the place where the search is to take place, the person to
be searched may be taken to another place to be searched.

no suitable searcher available at the place where the search is to take place, the person to
be searched may be taken to another place to be searched.

(3) Nothing in this section limits or affects the right at common law of a constable to search a person
on that person’s arrest or any statutory power conferred on a member of the National Police
Service. (4) If any thing is seized under subsection (1) from the person arrested—
(a) the member of the National Police Service shall make a report to the Cabinet Secretary
specifying the items seized and any other relevant information; and
(b) the Cabinet Secretary shall, on receipt of the report referred to in paragraph (a), provide the
ICC with a report on the seizure. 73. Disposal of property seized
(1) If the Cabinet Secretary makes a surrender order or temporary surrender order under this Act,
the Cabinet Secretary may also direct that any thing that was seized under section 72 that may be
evidence of the offence the person is alleged to have committed or has committed be delivered with
the person on his surrender to the ICC.

that may be
evidence of the offence the person is alleged to have committed or has committed be delivered with
the person on his surrender to the ICC.

(2) If the person cannot be surrendered or temporarily surrendered by reason of the person’s death or
escape from custody, the Cabinet Secretary may direct that any thing that was seized under section
72 that may be evidence of the offence the person is alleged to have committed or has committed be
delivered up to the ICC. (3) If a person is discharged under this Act without being surrendered or temporarily surrendered, the
Cabinet Secretary may direct that any thing seized under section 72 be returned to the person from
whom it was seized. (4) The Cabinet Secretary may refuse to direct that any thing referred to in subsection (1) or (2)
be delivered to the ICC if the thing is required for the investigation of an offence within the
jurisdiction of Kenya. (5) The Cabinet Secretary may refuse to direct that any thing referred to in subsection (3) be returned
to the person if—
(a) the thing is the subject of a dispute as to who is entitled to it;
(b) the thing is required for the investigation of an offence within the jurisdiction of Kenya; or
(c) possession of the thing by the person would be unlawful in Kenya. 29

ired for the investigation of an offence within the jurisdiction of Kenya; or
(c) possession of the thing by the person would be unlawful in Kenya. 29

International Crimes Act (Cap. 60) Kenya
74. Information about time spent in custody in Kenya
(1) If the ICC requests the surrender of a person, and that person is detained in a Kenyan prison or any
other place at any time pending surrender, the officer in charge of the prison or other place shall
keep a record of the time spent in custody as if the person were charged with an offence against the
law of Kenya and were on remand. (2) The officer in charge shall, if requested, provide to the Cabinet Secretary a certificate recording—
(a) the date on which the person was admitted to a prison or any other place to be held in
custody in relation to the request;
(b) the total period during which the person was detained in custody during the process leading
to the surrender of the person to Kenya in relation to the offence or offences; and
(c) whether the person was, at any time during the period in custody in relation to the
surrender, also serving a sentence for an offence against Kenyan law.

ther the person was, at any time during the period in custody in relation to the
surrender, also serving a sentence for an offence against Kenyan law.

(3) The Cabinet Secretary shall provide to the ICC at the time of the surrender of the person, or as soon
as possible after that, a certificate recording the information specified in subsection (2) and such
other information relating to any period spent in custody in relation to the surrender as the ICC
may request. [Cf. Rome Statute, article 78(2).]
75. Consent to trial of surrendered person for previous offences
(1) Where—
(a) a person is surrendered to the ICC under this Act; and
(b) the ICC requests a waiver of the requirements of paragraph 1 of article 101 of the Rome
Statute (which relates to the rule of speciality), the Cabinet Secretary may consent to
the person being proceeded against, punished, or detained for conduct committed before
surrender (not being the conduct or course of conduct that forms the basis of the crimes for
which that person has been surrendered). (2) The consent given under subsection (1) may relate to the person’s surrender to another State.

crimes for
which that person has been surrendered). (2) The consent given under subsection (1) may relate to the person’s surrender to another State.

(3) Before giving consent under subsection (1), the Minister—
(a) may request that additional information be provided in accordance with article 91 of the
Rome Statute; and
(b) may seek such assurances from the ICC as the Cabinet Secretary thinks fit. [Cf. Rome Statute, articles 91, 101.]
Part V – DOMESTIC PROCEDURES FOR OTHER TYPES OF CO-OPERATION
Finding Persons or Things, and Obtaining Evidence
76. Assistance in locating or identifying persons or things
(1) Where the ICC requests assistance under paragraph 8 of article 19, article 56, article 64 or
paragraph 1(a) of article 93 of the Rome Statute in locating, or identifying and locating, a person
or a thing believed to be in Kenya, the Director of Public Prosecutions shall give authority for the
request to proceed if he is satisfied that—
(a) the request relates to an investigation being conducted by the Prosecutor or any proceedings
before the ICC; and
30

oceed if he is satisfied that—
(a) the request relates to an investigation being conducted by the Prosecutor or any proceedings
before the ICC; and
30

International Crimes Act (Cap. 60) Kenya
(b) the person to whom or thing to which the request relates is or may be in Kenya. (2) If the Director of Public Prosecutions gives authority for the request to proceed—
(a) the Director of Public Prosecutions shall forward the request to the appropriate Kenyan
agency; and
(b) that agency shall, without delay—
(i) use its best endeavours to locate or, as the case may be, identify and locate the person
to whom or thing to which the request relates; and
(ii) advise the Director of Public Prosecutions of the outcome of those endeavours. [Cf. Rome Statute, articles 19(8), 56, 64, 93 (1)(a)]
[Act No. 19 of 2023, Sch.]
77. Assistance in gathering evidence
(1) This section shall apply if the ICC requests, under paragraph 8 of article 19, article 56, article 64 or
paragraph 1(b) of article 93 of the Rome Statute, that—
(a) evidence be taken in Kenya; or
(b) documents or other articles in Kenya be produced.

64 or
paragraph 1(b) of article 93 of the Rome Statute, that—
(a) evidence be taken in Kenya; or
(b) documents or other articles in Kenya be produced.

(2) The Director of Public Prosecutions shall give authority for the request to proceed if the Director of
Public Prosecutions is satisfied that—
(a) the request relates to an investigation being conducted by the Prosecutor or to any
proceedings before the ICC; and
(b) there are reasonable grounds for believing that the evidence can be taken or, as the case may
be, the documents or other articles can be produced in Kenya. [Cf. Rome Statute, articles 19(8), 56, 64, 93(1)(a)]
[Act No. 19 of 2023, Sch.]
78. Taking evidence
(1) If the Director of Public Prosecutions gives authority for a request relating to the taking of evidence
to proceed, the statement of each witness shall be taken in writing on the oath or affirmation of
that witness by a Judge of the High Court. (2) The Judge who takes evidence under subsection (1) shall—
(a) certify that the evidence was taken by the Judge; and
(b) ensure that the evidence, as certified, is sent to the Director of Public Prosecutions. [Act No. 19 of 2023, Sch.]
79.

was taken by the Judge; and
(b) ensure that the evidence, as certified, is sent to the Director of Public Prosecutions. [Act No. 19 of 2023, Sch.]
79.

Producing documents or other articles
(1) If the Director of Public Prosecutions gives authority for a request relating to the production of
documents or other articles to proceed, a Judge of the High Court may make an order requiring their
production. (2) If the documents or other articles are produced, the Judge shall send them to the Director of Public
Prosecutions together with a written statement certifying that they were produced to the Judge. 31

the Judge shall send them to the Director of Public
Prosecutions together with a written statement certifying that they were produced to the Judge. 31

International Crimes Act (Cap. 60) Kenya
(3) Notwithstanding subsection (2), in the case of documents that are produced, the Judge may send to
the Director of Public Prosecutions copies of the documents certified by the Judge to be true copies
instead of the originals. [Act No. 19 of 2023, Sch.]
80. Protection of witnesses
(1) The applicable law with respect to compelling a person to appear before a Judge under section 78 or
79 and to give evidence or answer questions, or to produce documents or other articles, is the law
specified in subsection (2), which law shall apply with any necessary modifications. (2) For the purposes of subsection (1), the applicable law is the law of Kenya that applies to the giving
of evidence or the answering of questions or the production of documents or other articles on the
hearing of a charge against a person for an offence against the law of Kenya. (3) Notwithstanding subsection (1), for the purposes of sections 78 and 79, the person to whom the
investigation being conducted by the Prosecutor, or the proceedings before the ICC, relates is
competent but not compellable to give evidence.

hom the
investigation being conducted by the Prosecutor, or the proceedings before the ICC, relates is
competent but not compellable to give evidence.

(4) Notwithstanding subsection (1), a person who is required under section 78 or 79 to give evidence,
or to produce documents or other articles, is not required to give any evidence, or to produce any
document or article, that the person could not be compelled to give or produce in the investigation
being conducted by the Prosecutor or the proceedings before the ICC. (5) A person who is required under section 78 or 79 to give evidence or to produce documents or other
articles—
(a) has the same privileges in relation to the answering of questions and the production
of documents or articles as if the investigation were being conducted in Kenya or the
proceedings were pending in a Kenyan court, as the case may be; and
(b) shall be given a copy of any statement required to be given to a witness under the ICC Rules
in the manner and form required by those Rules. (6) Subsections (4) and (5) shall have effect subject to section 27 and any contrary provision in the
Rome Statute or the ICC Rules. 81.

those Rules. (6) Subsections (4) and (5) shall have effect subject to section 27 and any contrary provision in the
Rome Statute or the ICC Rules. 81.

ICC may give evidence certificate
(1) In this section, "evidence certificate" means a certificate or declaration that—
(a) is given or made by or on behalf of the ICC; and
(b) specifies or declares whether, under the Rome Statute or the ICC Rules, a specified person or
class of persons could or could not be required to answer a specified question or to produce a
specified document—
(i) generally;
(ii) in specified proceedings; or
(iii) in specified circumstances. (2) An evidence certificate authenticated under subsection (3) is admissible in proceedings for the
purposes of the application of section 80(4) as prima facie evidence of the matters stated in the
certificate. (3) A certificate is authenticated for the purposes of subsection (2) if it purports to be—
(a) signed or certified by a Judge, the Registrar, the Deputy Registrar, or a member of the staff of
the ICC; or
32

bsection (2) if it purports to be—
(a) signed or certified by a Judge, the Registrar, the Deputy Registrar, or a member of the staff of
the ICC; or
32

International Crimes Act (Cap. 60) Kenya
(b) authenticated in any other manner authorised by the Rome Statute or the ICC Rules. 82. Certain persons may appear
(1) The following persons may appear and be legally represented at a hearing held under section 78 or
79—
(a) the person to whom the proceedings before the ICC or the investigation conducted by the
Prosecutor relates;
(b) any other person giving evidence or producing documents or other articles at the hearing;
(c) a representative of the Prosecutor or ICC. (2) This section shall have effect subject to any contrary provision of the Rome Statute or the ICC
Rules. (3) A certificate by a Judge under section 78(2) or section 79(2) shall state whether any of the persons
specified in subsection (1) were present when the evidence was taken or the documents or other
articles were produced. 83. Powers of Judge may be exercised by Registrar
(1) The Chief Justice may authorise the Registrar of the High Court to exercise the powers of a Judge
under section 78 or 79 in respect of any particular case. (2) An authorisation given under subsection (1) may be revoked at any time by the Chief Justice.

r section 78 or 79 in respect of any particular case. (2) An authorisation given under subsection (1) may be revoked at any time by the Chief Justice.

(3) If a matter in respect of which the Registrar has jurisdiction under an authorisation given under
subsection (1) appears to the Registrar to be one of special difficulty, the Registrar may refer the
matter to a Judge, who may—
(a) dispose of the matter; or
(b) refer it back to the Registrar with such directions as the Judge thinks fit. (4) Nothing in this section prevents the exercise by any Judge of any jurisdiction or powers conferred
on any Registrar under this section. Questioning persons
84. Assistance in questioning persons
(1) Where the ICC requests assistance under paragraph 8 of article 19, article 56, article 64 or
paragraph 1(c) of article 93 of the Rome Statute in questioning a person who is being investigated
or prosecuted, the Director of Public Prosecutions may give authority for the request to proceed if
he is satisfied that—
(a) the request relates to an investigation being conducted by the Prosecutor or any proceedings
before the ICC; and
(b) the person is or may be in Kenya.

the request relates to an investigation being conducted by the Prosecutor or any proceedings
before the ICC; and
(b) the person is or may be in Kenya.

(2) If the Director of Public Prosecutions gives authority to proceed—
(a) he shall forward the request to the appropriate Kenyan agency; and
(b) that agency shall, without delay—
(i) use its best endeavours to undertake the questioning that the ICC has requested;
33

riate Kenyan agency; and
(b) that agency shall, without delay—
(i) use its best endeavours to undertake the questioning that the ICC has requested;
33

International Crimes Act (Cap. 60) Kenya
(ii) ensure that the answers to the questions put are recorded in writing and make any
other report on the questioning as it considers to be appropriate in the circumstances;
and
(iii) advise the Director of Public Prosecutions of the outcome of those endeavours and, if
relevant, deliver to him the record and any report of the questioning. [Act No. 19 of 2023, Sch.]
85.

tions of the outcome of those endeavours and, if
relevant, deliver to him the record and any report of the questioning. [Act No. 19 of 2023, Sch.]
85.

Procedure where questioning by Kenyan agency
(1) Where there are grounds to believe that a person who is to be questioned by a Kenyan agency
following a request under paragraph 1(c) of article 91 of the Rome Statute has committed a crime
within the jurisdiction of the ICC, the person—
(a) shall not be compelled to incriminate himself or herself or to confess guilt;
(b) shall not be subjected to any form of coercion, duress or threat, to torture or to any other
form of cruel, inhuman or degrading treatment or punishment;
(c) shall, if questioned in a language other than a language the person fully understands
and speaks, have, free of any cost, the assistance of a competent interpreter and such
translations as are necessary to meet the requirements of fairness;
(d) shall not be subjected to arbitrary arrest or detention, and shall not be deprived of his or her
liberty except on such grounds and in accordance with such procedures as are established in
the Rome Statute; and
(e) shall be informed, before being questioned, that there are grounds to believe that he has
committed a crime within the jurisdiction of the ICC and that he has the right—
(i) to remain silent, without such silence being a consideration in the determination of
his guilt or innocence;
(ii) to have legal assistance of his choosing, or, if he does not have legal assistance, to
have legal assistance assigned to him, in any case where the interests of justice so
require, and without payment by him in any such case if he does not have sufficient
means to pay for it; and
(iii) to be questioned in the presence of a lawyer unless he voluntarily waives the right to
counsel.

oes not have sufficient
means to pay for it; and
(iii) to be questioned in the presence of a lawyer unless he voluntarily waives the right to
counsel.

(2) If there is any inconsistency between subsection (2) and any other written law, subsection (2) shall
prevail to the extent of the inconsistency. (3) If the person seeks to have legal assistance assigned under subsection (2) (e) (ii), the Director of
Public Prosecutions shall cause such assistance to be provided. (4) This section does not give any person a power to require another person to answer questions. [Cf. Rome Statute, article 55]
[Act No. 19 of 2023, Sch.]
Service of Documents and Appearance of Witnesses
86. Assistance in arranging service of documents
(1) Where the ICC requests assistance under paragraph 8 of article 19, article 56, paragraph 7 of article
58, article 64 or paragraph 1(d) of article 93 of the Rome Statute in arranging for the service of
34

f article 19, article 56, paragraph 7 of article
58, article 64 or paragraph 1(d) of article 93 of the Rome Statute in arranging for the service of
34

International Crimes Act (Cap. 60) Kenya
a document in Kenya, the Director of Public Prosecutions shall give authority for the request to
proceed if he is satisfied that—
(a) the request relates to an investigation being conducted by the Prosecutor or any proceedings
before the ICC; and
(b) the person or body to be served is or may be in Kenya. (2) If the Director of Public Prosecutions gives authority for the request to proceed, he shall forward
the request for service to the appropriate Kenyan agency, and that agency shall, without delay—
(a) use its best endeavours to have the process served—
(i) in accordance with any procedure specified in the request; or
(ii) if that procedure would be unlawful or inappropriate in Kenya, or if no procedure is
specified, in accordance with the law of Kenya; and
(b) transmit to the Director of Public Prosecutions—
(i) a certificate as to service, if the document is served; or
(ii) a statement of the reasons that prevented service, if the document is not served.

(i) a certificate as to service, if the document is served; or
(ii) a statement of the reasons that prevented service, if the document is not served.

(3) In this section, "document" includes—
(a) a summons requiring a person to appear as a witness; and
(b) a summons to an accused that has been issued under paragraph 7 of article 58 of the Rome
Statute. [Cf. Rome Statute, articles 19(8), 56, 58(7), 59 (7), 64, 93(1)(d)]
[Act No. 19 of 2023, Sch.]
87. Request for voluntary appearance of witness
(1) Where the ICC requests assistance under paragraph 8 of article 19, article 56, paragraph 7 of
article 58, article 64 or paragraph 1(e) of article 93 of the Rome Statute in facilitating the voluntary
appearance of a witness before the ICC, the Director of Public Prosecutions may give authority for
the request to proceed if he is satisfied that—
(a) the request relates to an investigation being conducted by the Prosecutor or any proceedings
before the ICC; and
(b) the witness’s attendance is sought so that the witness can give evidence or information
relating to the investigation or proceedings; and
(c) the witness is or may be in Kenya.

s sought so that the witness can give evidence or information
relating to the investigation or proceedings; and
(c) the witness is or may be in Kenya.

(2) In this section and sections 88 and 89, "witness" includes a person who may give expert evidence,
but does not include a person who has been accused of an international crime in the proceedings to
which the request relates. [Cf. Rome Statute, articles 19(8), 56, 64, 93(1)(e)]
[Act No. 19 of 2023, Sch.]
88. Consent required and assurances may be sought
(1) If the Director of Public Prosecutions gives authority for the request to facilitate the voluntary
appearance of a witness to proceed, he shall forward the request to the appropriate Kenyan agency. 35

rity for the request to facilitate the voluntary
appearance of a witness to proceed, he shall forward the request to the appropriate Kenyan agency. 35

International Crimes Act (Cap. 60) Kenya
(2) The Kenyan agency to which a request is forwarded under subsection (1) shall make such inquiries
as may be necessary to ascertain if the prospective witness consents to giving evidence or assisting
the ICC. (3) The Director of Public Prosecutions may, at any time, ask the ICC to give one or more of the
following assurances—
(a) that the witness will not be prosecuted, detained, or subjected to any restriction of personal
freedom by the ICC in respect of all or any specified acts or omissions that occurred before
the person’s departure from Kenya;
(b) that the witness will be returned to Kenya as soon as practicable in accordance with
arrangements agreed to by the Director of Public Prosecutions;
(c) an assurance relating to such other matters as the Director of Public Prosecutions thinks
appropriate. [Cf. Rome Statute, article 93(2)]
[Act No. 19 of 2023, Sch.]
89.

ting to such other matters as the Director of Public Prosecutions thinks
appropriate. [Cf. Rome Statute, article 93(2)]
[Act No. 19 of 2023, Sch.]
89.

Director of Public Prosecutions may facilitate appearance
(1) The Director of Public Prosecutions shall assist in the making of arrangements to facilitate a
witness’s attendance before the ICC if he is satisfied that—
(a) the prospective witness has consented to giving the evidence or assistance requested; and
(b) the ICC has given adequate assurances where appropriate. (2) The Director of Public Prosecutions shall—
(a) approve and arrange the travel of the witness to the ICC;
(b) obtain such approvals, authorities, and permissions as are required for that purpose,
including, in the case of a person who although not liable to be detained in a prison is
subject to a sentence—
(i) the variation, discharge, or suspension of the conditions of the person’s release from
prison; or
(ii) the variation or suspension of the person’s sentence, or of the conditions of the
person’s sentence; and
(c) take such other action for the purposes of subsection (1) as he thinks appropriate. [Act No. 19 of 2023, Sch.]
Temporary Transfer of Prisoners
90.

(c) take such other action for the purposes of subsection (1) as he thinks appropriate. [Act No. 19 of 2023, Sch.]
Temporary Transfer of Prisoners
90.

Request for temporary transfer of prisoner
Where the ICC requests assistance under paragraph 1(f) of article 93 of the Rome Statute in facilitating the
temporary transfer to the ICC of a Kenyan prisoner, the Director of Public Prosecutions shall give authority
for the request to proceed if he is satisfied that—
(a) the request relates to an investigation being conducted by the Prosecutor or any proceedings before
the ICC; and
36

oceed if he is satisfied that—
(a) the request relates to an investigation being conducted by the Prosecutor or any proceedings before
the ICC; and
36

International Crimes Act (Cap. 60) Kenya
(b) the prisoner’s attendance is sought for the purposes of identification or for obtaining evidence or
other assistance. [Cf. Rome Statute, articles 93(1)(f) and (7)]
[Act No. 19 of 2023, Sch.]
91. Consent required and assurances may be sought
(1) If the Director of Public Prosecutions gives authority for the request to facilitate the temporary
transfer of a Kenyan prisoner to proceed, he shall forward the request to the appropriate Kenyan
agency. (2) The Kenyan agency to which a request is forwarded under subsection (1) shall make such inquiries
as may be necessary to ascertain if the prisoner will consent to the transfer. (3) The Director of Public Prosecutions may ask the ICC to give one or more of the following assurances
—
(a) that the prisoner will not be released from custody without the prior approval of the Director
of Public Prosecutions;
(b) that the prisoner will be returned to Kenya without delay in accordance with arrangements
agreed to by the Director of Public Prosecutions;
(c) assurances relating to such other matters as he thinks appropriate. [Act No. 19 of 2023, Sch.]
92.

reed to by the Director of Public Prosecutions;
(c) assurances relating to such other matters as he thinks appropriate. [Act No. 19 of 2023, Sch.]
92.

Director of Public Prosecutions may arrange for transfer
(1) The Director of Public Prosecutions may authorise the temporary transfer of a Kenyan prisoner to
the ICC if he is satisfied that—
(a) the prisoner has consented to giving the evidence or assistance requested; and
(b) the ICC has given adequate assurances where appropriate. (2) If the Director of Public Prosecutions authorises the temporary transfer of the prisoner to the ICC,
he may—
(a) direct that the prisoner be released from the prison in which that person is detained, for the
purpose of the transfer to the ICC; and
(b) make arrangements for the prisoner to travel to the ICC in the custody of—
(i) a member of the National Police Service;
(ii) a prison officer; or
(iii) a person authorised for the purpose by the ICC. (3) A direction given by the Director of Public Prosecutions under subsection (2) in respect of a
prisoner is sufficient authority for the release of the prisoner from the prison in which the prisoner
is detained, for the purposes of the direction. (4) Every person released under a direction given under subsection (2) is to be treated, for the purposes
of sections 122, 123 and 124 of the Penal Code (Cap.

y person released under a direction given under subsection (2) is to be treated, for the purposes
of sections 122, 123 and 124 of the Penal Code (Cap.

63), (which relate to rescue or escape from
lawful custody), as continuing to be in lawful custody while in Kenya during the period of that
release. [Act No. 19 of 2023, Sch.]
37

or escape from
lawful custody), as continuing to be in lawful custody while in Kenya during the period of that
release. [Act No. 19 of 2023, Sch.]
37

International Crimes Act (Cap. 60) Kenya
93. Effect of transfer on prisoner’s sentence
(1) If a prisoner who is charged with or convicted of an offence against the law of Kenya is transferred
to the ICC under section 92, the provisions of section 94 shall apply to any period that the person
spends in custody outside Kenya in connection with the request before sentence is imposed for the
Kenyan offence. (2) If a prisoner who is serving a sentence for a Kenyan offence is transferred to the ICC under section
92—
(a) the prisoner is to be treated, while in custody outside Kenya in connection with the request,
as being in custody for the purposes of the Kenyan sentence, which shall continue to run;
and
(b) the Director of Public Prosecutions—
(i) may at any time notify the ICC that the prisoner is no longer required to be kept in
custody; and
(ii) shall notify the ICC if the prisoner is no longer liable to be detained in a Kenyan
prison. [Act No. 19 of 2023, Sch.]
94.

e kept in
custody; and
(ii) shall notify the ICC if the prisoner is no longer liable to be detained in a Kenyan
prison. [Act No. 19 of 2023, Sch.]
94.

Request for information about time spent in custody overseas
(1) If a prisoner who is charged with or convicted of an offence against the law of Kenya (in this section
referred to as "the Kenyan offence") is transferred to the ICC under section 92 before sentence is
imposed for the Kenyan offence, the Director of Public Prosecutions may—
(a) advise the ICC of the date on which the prisoner was sentenced for the Kenyan offence; and
(b) request the ICC to provide a certificate recording the total period during which the prisoner
was detained outside Kenya in connection with the request until sentence was imposed for
the Kenyan offence. (2) A certificate obtained under subsection (1) shall be presumed to be accurate in the absence of any
evidence to the contrary.

r
the Kenyan offence. (2) A certificate obtained under subsection (1) shall be presumed to be accurate in the absence of any
evidence to the contrary.

(3) The Director of Public Prosecutions may issue a certificate setting out the date and period specified
in subsection (1) if—
(a) the ICC does not provide a certificate within a reasonable time after the Director of Public
Prosecutions makes a request under subsection (1); and
(b) the Director of Public Prosecutions is satisfied on such information that he has that an
accurate calculation can be made of the period referred to in paragraph (b) of subsection (1). [Act No. 19 of 2023, Sch.]
Evidence
95. Assistance in examining places or sites
(1) Where the ICC requests assistance under paragraph 8 of article 19, article 56, article 64 or
paragraph 1(g) of article 93 of the Rome Statute in examining places or sites in Kenya, the Director
of Public Prosecutions shall give authority for the request to proceed if he is satisfied that the
request relates to an investigation being conducted by the Prosecutor or any proceedings before the
ICC. 38

est to proceed if he is satisfied that the
request relates to an investigation being conducted by the Prosecutor or any proceedings before the
ICC. 38

International Crimes Act (Cap. 60) Kenya
(2) If the Director of Public Prosecutions gives authority for the request to proceed—
(a) he shall forward the request to the appropriate Kenyan agency; and
(b) that agency shall, without delay—
(i) use its best endeavours to undertake the examination of the place or site in the
manner that the ICC has requested;
(ii) make such report on the examination as it considers to be appropriate in the
circumstances; and
(iii) deliver the report of the examination to the Director of Public Prosecutions. (3) This section does not confer on any person a power to enter a place or site. [Cf. Rome Statute, articles 19(8), 56, 64, 93(1)(g)]
[Act No. 19 of 2023, Sch.]
96.

on does not confer on any person a power to enter a place or site. [Cf. Rome Statute, articles 19(8), 56, 64, 93(1)(g)]
[Act No. 19 of 2023, Sch.]
96.

Request for search and seizure
(1) Where the ICC makes a request under paragraph 8 of article 19, article 56, article 64 or paragraph
1(h) of article 93 of the Rome Statute for search and seizure, the Director of Public Prosecutions
shall give authority for the request to proceed if he is satisfied that—
(a) the request relates to an investigation being conducted by the Prosecutor or any proceedings
before the ICC; and
(b) any thing relevant to the investigation or proceedings is or may be located in Kenya. (2) If the Director of Public Prosecutions gives authority for the request to proceed, he may authorise a
member of the National Police Service, in writing, to apply to a Judge of the High Court for a search
warrant under section 97. [Cf. Rome Statute, articles 19(8), 56, 64, 93(1)(b)]
[Act No. 19 of 2023, Sch.]
97.

o a Judge of the High Court for a search
warrant under section 97. [Cf. Rome Statute, articles 19(8), 56, 64, 93(1)(b)]
[Act No. 19 of 2023, Sch.]
97.

Issue of search warrant
(1) Where a Judge of the High Court, on an application in writing made on oath or affirmation by a
member of the National Police Service, is satisfied that there are reasonable grounds for believing
that there is in or on any place or thing—
(a) any thing on or in respect of which an international crime has been, or is suspected of having
been, committed; or
(b) anything that may be evidence as to the commission of any such crime, the Judge shall issue
a warrant in respect of that thing. (2) A Judge shall not issue a warrant under this section unless the application contains, or the
applicant otherwise supplies to the Judge, such information as the Judge requires concerning the
grounds on which the warrant is sought. (3) A Judge may issue a warrant under this section subject to such conditions as he thinks fit. 98. Form and content of search warrant
A warrant issued under section 97 shall—
(a) be in the prescribed form;
39

to such conditions as he thinks fit. 98. Form and content of search warrant
A warrant issued under section 97 shall—
(a) be in the prescribed form;
39

International Crimes Act (Cap. 60) Kenya
(b) be directed to a member of the National Police Service by name, or to any class of members of the
police specified in the warrant, or generally to every member of the National Police Service; and
(c) specify any conditions that the Judge has imposed under section 97 (3). 99. Powers conferred by warrant
(1) Subject to any conditions specified in the warrant under section 98, a warrant issued under section
97 authorises the member of the National Police Service executing the warrant—
(a) to enter and search the place or thing specified in the warrant at any time by day or night
during the currency of the warrant;
(b) to use such assistants as may be reasonable in the circumstances for the purpose of the entry
and search;
(c) to use such force as is reasonable in the circumstances for the purposes of effecting entry,
and for breaking open any thing in or on the place searched; and
(d) to search for and seize any thing referred to in section 97(1). (2) A person called on to assist any member of the National Police Service executing a warrant issued
under section 97 has the powers described in paragraphs (c) and (d) of subsection (1). 100.

of the National Police Service executing a warrant issued
under section 97 has the powers described in paragraphs (c) and (d) of subsection (1). 100.

Power to stop vehicles
(1) A member of the National Police Service may stop a vehicle (other than an aircraft which is
airborne) for the purpose of exercising a search power conferred by a warrant issued under section
97. (2) A person who fails to stop a vehicle when required to do so by virtue of this section is guilty of an
offence and shall be liable on conviction to imprisonment for a term not exceeding six months or to
a fine, or both. 101. Person executing warrant to produce evidence of authority
Every member of the National Police Service executing any warrant issued under section 97—
(a) shall have that warrant with him;
(b) shall produce it on initial entry and, if requested, at any subsequent time; and
(c) shall, if requested at the time of the execution of the warrant or at any subsequent time, provide a
copy of the warrant within seven days after the request is made. 102.

at the time of the execution of the warrant or at any subsequent time, provide a
copy of the warrant within seven days after the request is made. 102.

Notice of execution of warrant
(1) Every member of the National Police Service who executes a warrant issued under section 97 shall,
not later than seven days after the seizure of any thing under that warrant, give to the owner
or occupier of the place or thing searched, and to every other person whom the member of the
National Police Service has reason to believe may have an interest in the thing seized, a written
notice specifying—
(a) the date and time of the execution of the warrant;
(b) the identity of the person who executed the warrant; and
(c) the thing seized under the warrant. (2) If the warrant is executed, a report on the execution of the warrant, together with a copy of any
notice given under subsection (1) shall be sent to the Director of Public Prosecutions, without delay. 40

of the warrant, together with a copy of any
notice given under subsection (1) shall be sent to the Director of Public Prosecutions, without delay. 40

International Crimes Act (Cap. 60) Kenya
(3) If the warrant is not able to be executed, a report explaining the reasons for this shall be sent to the
Director of Public Prosecutions without delay. [Act No. 19 of 2023, Sch.]
103. Disposal of things seized
(1) If a member of the National Police Service seizes a thing under a warrant issued under section 97, it
shall be delivered into the custody and control of—
(a) the Inspector-General of Police; or
(b) a commissioned officer of police designated by the Inspector-General of Police to receive
things seized under this Act. (2) The Inspector-General of Police or designated officer shall—
(a) inform the Director of Public Prosecutions, without delay, that the thing has been so
delivered;
(b) retain the thing for a period not exceeding three months from the day on which the thing
was seized, pending the Director of Public Prosecutions’s direction under subsection (3)
about how to deal with it; and
(c) comply with any direction that the Director of Public Prosecutions gives him.

ions’s direction under subsection (3)
about how to deal with it; and
(c) comply with any direction that the Director of Public Prosecutions gives him.

(3) The Director of Public Prosecutions may, by written notice, give the Inspector-General of Police or
the designated officer a direction—
(a) requiring the Commissioner or designated officer to send the thing to the ICC; or
(b) requiring the Commissioner or designated officer to deal with it in some other way. (4) The Director of Public Prosecutions shall direct the Inspector-General of Police or the designated
officer to return the thing seized to the person from whose possession it was seized as soon as
practicable, if—
(a) the ICC advises that the thing is not required for the Prosecutor’s investigation or its
proceedings; or
(b) no other direction is given by the Director of Public Prosecutions before the expiry of three
months from the day on which the thing was seized. (5) Notwithstanding subsection (4), the Director of Public Prosecutions may refuse to return the thing
to the person from whom it was seized if—
(a) the thing is the subject of a dispute as to who is entitled to it;
(b) the thing is required for the investigation of an offence within the jurisdiction of Kenya; or
(c) possession of the thing by the person would be unlawful in Kenya. [Act No.

or the investigation of an offence within the jurisdiction of Kenya; or
(c) possession of the thing by the person would be unlawful in Kenya. [Act No.

19 of 2023, Sch.]
104. Facilitating provision of records and documents
(1) Where the ICC makes a request under paragraph 1(i) of article 93 of the Rome Statute for the
provision of records and documents, including official records and documents, the Director of
Public Prosecutions shall give authority for the request to proceed if he is satisfied that—
(a) the request relates to an investigation being conducted by the Prosecutor or any proceedings
before the ICC; and
(b) the document or record sought is or may be in Kenya. 41

an investigation being conducted by the Prosecutor or any proceedings
before the ICC; and
(b) the document or record sought is or may be in Kenya. 41

International Crimes Act (Cap. 60) Kenya
(2) If the Director of Public Prosecutions gives authority for the request to proceed—
(a) he shall forward the request to the appropriate Kenyan agency; and
(b) that agency shall, without delay—
(i) use its best endeavours to locate and make available the document or record sought;
(ii) make such report on its endeavours as it considers to be appropriate in the
circumstances; and
(iii) deliver the document or record, if located, to the Director of Public Prosecutions. (3) This section does not confer on any person power to require the production of a document or
record. [Cf. Rome Statute, article 93 (1)(i)]
[Act No. 19 of 2023, Sch.]
105. Protecting victims and witnesses and preserving evidence
(1) This section shall apply if the ICC requests—
(a) assistance under paragraph 1(j) of article 93 of the Rome Statute in protecting victims and
witnesses or preserving evidence; or
(b) assistance under paragraph 8 of article 19, or paragraphs 2 or 3 of article 56, in preserving
evidence.

s and
witnesses or preserving evidence; or
(b) assistance under paragraph 8 of article 19, or paragraphs 2 or 3 of article 56, in preserving
evidence.

(2) The Director of Public Prosecutions shall give authority for the request to proceed if he is satisfied
that—
(a) the request relates to an investigation being conducted by the Prosecutor or any proceedings
before the ICC; and
(b) the assistance sought is not prohibited by Kenyan law. (3) If the Director of Public Prosecutions gives authority for the request to proceed—
(a) he shall—
(i) take such steps as he thinks appropriate in the particular case; and
(ii) forward the request to the appropriate Kenyan agency; and
(b) that agency shall, without delay—
(i) use its best endeavours to give effect to the request;
(ii) make such report on its endeavours as it considers to be appropriate in the
circumstances; and
(iii) deliver the report to the Director of Public Prosecutions. [Cf. Rome Statute, articles 19(8), 56(2) and (3), 68, 93(1)(j)]
[Act No. 19 of 2023, Sch.]
Identifying, Freezing or Seizing Property associated with International Crimes
42

icles 19(8), 56(2) and (3), 68, 93(1)(j)]
[Act No. 19 of 2023, Sch.]
Identifying, Freezing or Seizing Property associated with International Crimes
42

International Crimes Act (Cap. 60) Kenya
106. Request relating to property associated with crime
Where the ICC requests assistance under paragraph 1(k) of article 93 of the Rome Statute in identifying,
tracing and freezing, or seizing, any property for the purpose of eventual forfeiture, the Director of Public
Prosecutions shall give authority for the request to proceed if he is satisfied that—
(a) the request relates to an international crime that is being investigated by the Prosecutor, or which
is the subject of proceedings before the ICC; and
(b) the property concerned is or may be located in Kenya. [Cf. Rome Statute, articles 57(3)(e), 93(1)(k)]
[Act No. 19 of 2023, Sch.]
107.

the ICC; and
(b) the property concerned is or may be located in Kenya. [Cf. Rome Statute, articles 57(3)(e), 93(1)(k)]
[Act No. 19 of 2023, Sch.]
107.

Director of Public Prosecutions may authorise measures
If the Director of Public Prosecutions gives authority for the request for assistance in identifying, tracing
and freezing, or seizing, property to proceed, he may authorise the appropriate Kenyan authority to apply
for one or more of the following orders or warrants—
(a) a search warrant in respect of property under Part B of the Second Schedule;
(b) a restraining order under Part C of the Second Schedule;
(c) a production order under Part D of the Second Schedule;
(d) a monitoring order under Part E of the Second Schedule. [Act No. 19 of 2023, Sch.]
Other Types of Assistance
108. Request for other types of assistance
(1) Where the ICC requests any other type of assistance under paragraph 1(l) of article 93 of the Rome
Statute for the purposes of facilitating the investigation and prosecution of crimes within the
jurisdiction of the ICC, the Director of Public Prosecutions shall give authority for the request to
proceed if he is satisfied that—
(a) the request relates to an investigation being conducted by the Prosecutor or any proceedings
before the ICC; and
(b) the assistance sought is in accordance with Kenyan law.

an investigation being conducted by the Prosecutor or any proceedings
before the ICC; and
(b) the assistance sought is in accordance with Kenyan law.

(2) If the Director of Public Prosecutions gives authority for the request to proceed—
(a) he shall—
(i) take such steps as the Director of Public Prosecutions thinks appropriate in the
particular case; and
(ii) forward the request to the appropriate Kenyan agency; and
(b) that agency shall, without delay—
(i) use its best endeavours to give effect to the request;
(ii) make such report on its endeavours as it considers to be appropriate in the
circumstances; and
(iii) deliver the report to the Director of Public Prosecutions. 43

port on its endeavours as it considers to be appropriate in the
circumstances; and
(iii) deliver the report to the Director of Public Prosecutions. 43

International Crimes Act (Cap. 60) Kenya
(3) If the Director of Public Prosecutions considers that the assistance sought cannot lawfully be
provided, he shall, before refusing the request, and in accordance with paragraph 5 of article 93 of
the Rome Statute—
(a) consult with the ICC; and
(b) consider whether the assistance can be provided subject to conditions or whether it can be
provided at a later date or in an alternative manner. [Cf. Rome Statute, article 93(1)(l), (2) and (5)]
[Act No. 19 of 2023, Sch.]
Restrictions on Provision of Assistance
109. Refusal of assistance
(1) The Director of Public Prosecutions shall refuse a request by the ICC for assistance to which this
Part applies if—
(a) the ICC does not accept the conditions suggested in order to implement the request as
contemplated by paragraph 5 of article 93 of the Rome Statute and section 108(3);
(b) the ICC determines under article 18 or article 19 of the Rome Statute that the case to which
the request relates is inadmissible and section 113 (4) applies; or
(c) section 115(4) applies.

article 19 of the Rome Statute that the case to which
the request relates is inadmissible and section 113 (4) applies; or
(c) section 115(4) applies.

(2) The Director of Public Prosecutions may refuse a request by the ICC to which this Part applies if—
(a) Part VIII (which relates to the protection of national security or third party information)
applies;
(b) there are competing requests from the ICC and a State that is not a party to the Rome Statute
relating to the same conduct and section 59 (4) (as applied by section 114) applies; or
(c) there are competing requests from the ICC and a State that is not a party to the Rome Statute
relating to different conduct and section 60 (3) (as applied by section 114) applies. [Act No. 19 of 2023, Sch.]
110.

not a party to the Rome Statute
relating to different conduct and section 60 (3) (as applied by section 114) applies. [Act No. 19 of 2023, Sch.]
110.

Postponement of execution of assistance
(1) The Director of Public Prosecutions may postpone the execution of a request for assistance under
this Part if, and only if—
(a) the execution of the request would interfere with an ongoing investigation or prosecution for
a different offence and section 112 applies;
(b) a ruling on admissibility is pending before the ICC and section 113 applies;
(c) there are competing requests from the ICC and from another State to which Kenya is under
an international obligation and section 114(2) (a) applies;
(d) the request is for assistance under paragraph 1(l) of article 93 of the Rome Statute and is one
to which section 108(3) applies; or
(e) a request of the kind referred to in section 115(2)(c) is made to the ICC. (2) Even if a case is one to which subsection (1) applies, the Director of Public Prosecutions may decide
not to postpone the execution of the request, and in that event the request shall be dealt with in
accordance with this Part. 44

osecutions may decide
not to postpone the execution of the request, and in that event the request shall be dealt with in
accordance with this Part. 44

International Crimes Act (Cap. 60) Kenya
(3) If the Director of Public Prosecutions postpones the execution of a request for assistance under
this Part, the postponement may be for a reasonable time and may, if the Director of Public
Prosecutions considers it desirable, be extended from time to time. [Cf. Rome Statute, articles 93(9), 94, 95]
[Act No. 19 of 2023, Sch.]
111. Procedure if execution of assistance precluded under Kenyan law
If the execution of a particular measure of assistance specified in a request to which this Part applies
is prohibited in Kenya, then, notwithstanding any other provision in this Part, the Director of Public
Prosecutions shall—
(a) consider whether the assistance can be provided in another manner or subject to conditions; and
(b) promptly consult with the ICC in order to resolve the matter. [Cf. Rome Statute, article 93 (3)]
[Act No. 19 of 2023, Sch.]
112.

o conditions; and
(b) promptly consult with the ICC in order to resolve the matter. [Cf. Rome Statute, article 93 (3)]
[Act No. 19 of 2023, Sch.]
112.

Postponement where ongoing investigation or prosecution
(1) If the immediate execution of a request by the ICC for assistance to which this Part applies would
interfere with an ongoing investigation or prosecution of a case different from that to which the
request relates, the Director of Public Prosecutions may postpone the execution of the request for a
period of time agreed between him and the ICC. (2) Notwithstanding section 110(3), the period of postponement may be no longer than is reasonably
necessary to complete the investigation or prosecution. (3) Before making a decision to postpone the execution of a request, the Director of Public
Prosecutions shall consider whether the assistance could be provided immediately subject to certain
conditions. (4) If the Director of Public Prosecutions decides to postpone the execution of a request and the ICC
seeks assistance in the preservation of evidence under paragraph 1(j) of article 93 of the Rome
Statute, he shall deal with that request in accordance with this Part. [Cf. Rome Statute, article 94]
[Act No. 19 of 2023, Sch.]
113.

e 93 of the Rome
Statute, he shall deal with that request in accordance with this Part. [Cf. Rome Statute, article 94]
[Act No. 19 of 2023, Sch.]
113.

Postponement where admissibility challenge
(1) This section shall apply if the ICC is considering an admissibility challenge under article 18 or
article 19 of the Rome Statute in respect of a case that a request to which this Part applies relates. (2) If the ICC has not made an order under article 18 or article 19 of the Rome Statute allowing the
Prosecutor to collect evidence to which the request relates, the Director of Public Prosecutions may
postpone the execution of the request until the ICC’s determination on admissibility is issued. (3) If the ICC has made an order under article 18 or article 19 of the Rome Statute allowing the
Prosecutor to collect evidence to which the request relates, the Director of Public Prosecutions may
not postpone the execution of a request under this section but shall deal with it under this Part. (4) If the ICC determines that the case to which the request relates is inadmissible, the request shall be
refused. 45

l deal with it under this Part. (4) If the ICC determines that the case to which the request relates is inadmissible, the request shall be
refused. 45

International Crimes Act (Cap. 60) Kenya
(5) If the ICC determines that the case to which the request relates is admissible, and there is no other
ground for refusing or postponing the request, the request shall continue to be dealt with under this
Part. [Cf. Rome Statute, article 95]
[Act No. 19 of 2023, Sch.]
114. Competing requests
(1) If the Director of Public Prosecutions receives competing requests for assistance from the ICC and
from another State to which Kenya is under an obligation to respond, he shall endeavour, after
consultation with the ICC and the other State, to satisfy both requests. (2) For the purposes of subsection (1), the Director of Public Prosecutions may do either or both of the
following—
(a) postpone the execution of either of the competing requests;
(b) attach conditions to the provision of assistance under either or both of the requests. (3) If it is not possible to resolve the issue by consultation, the method of dealing with the competing
requests shall be resolved in accordance with article 90 of the Rome Statute, and sections 57 to 61
shall apply, with any necessary modifications. [Cf. Rome Statute, articles 90, 93(9)(a)]
[Act No.

rticle 90 of the Rome Statute, and sections 57 to 61
shall apply, with any necessary modifications. [Cf. Rome Statute, articles 90, 93(9)(a)]
[Act No.

19 of 2023, Sch.]
115. Requests involving conflict with other international obligations
(1) If a request by the ICC for assistance to which this Part applies concerns persons who, or
information or property that, are subject to the control of another State or an international
organisation under an international agreement, the Director of Public Prosecutions shall inform the
ICC to enable it to direct its request to the other State or international organisation. (2) Where—
(a) the ICC makes a request for assistance;
(b) the ICC has not previously made a final determination on whether or not paragraph 1 of
article 98 of the Rome Statute applies to that request; and
(c) a request is made to the ICC to determine whether or not paragraph 1 of article 98 applies
to the request for surrender, the Cabinet Secretary may postpone the request for assistance
until the ICC advises whether or not it wishes to proceed with the request for assistance. (3) If the ICC advises that it does not intend to proceed with the request, the request for assistance
shall be refused.

h the request for assistance. (3) If the ICC advises that it does not intend to proceed with the request, the request for assistance
shall be refused.

(4) If the ICC advises that it intends to proceed with the request for assistance, and there is no other
ground for refusing or postponing the request, the request shall continue to be dealt with under this
Part. [Cf. Rome Statute, article 98(1)]
[Act No. 19 of 2023, Sch.]
Miscellaneous
46

he request, the request shall continue to be dealt with under this
Part. [Cf. Rome Statute, article 98(1)]
[Act No. 19 of 2023, Sch.]
Miscellaneous
46

International Crimes Act (Cap. 60) Kenya
116. Effect of authority to proceed
At any time before a formal response is sent to the ICC, the Director of Public Prosecutions may decide
that a request by the ICC for assistance to which this Part applies will be refused or the execution of the
request postponed, on a ground specified in section 109 or 110, even if he has previously given authority
for the request to proceed. [Act No. 19 of 2023, Sch.]
117. Request may relate to assistance sought by defence
A request made by the ICC under Part 9 of the Rome Statute to assist a defendant in the preparation of his
defence shall be dealt with in the same manner as a like request to assist the Prosecutor. [Cf. Rome Statute, article 57(3)(b).]
118. Execution of request by Prosecutor
(1) The Prosecutor may execute a request that does not involve any compulsory measures on Kenyan
territory in the circumstances specified in paragraph 4 of article 99 of the Rome Statute.

est that does not involve any compulsory measures on Kenyan
territory in the circumstances specified in paragraph 4 of article 99 of the Rome Statute.

(2) If the Director of Public Prosecutions identifies difficulties with the execution of a request to which
paragraph 4 (b) of article 99 of the Rome Statute relates, he shall without delay consult with the ICC
in order to resolve the matter. (3) The provisions of this Act and the Rome Statute which allow a person heard or examined by the
ICC under article 72 of the Rome Statute to invoke restrictions designed to prevent disclosure of
confidential information connected with national security shall apply to the execution of requests
for assistance under article 99 of the Rome Statute. [Cf. Rome Statute, article 99(4) and (5)]
[Act No. 19 of 2023, Sch.]
Part VI – ENFORCEMENT OF PENALTIES
Orders relating to Victim Reparation
119. Assistance with enforcement of orders for victim reparation
(1) This section shall apply if—
(a) the ICC—
(i) makes an order under article 75 of the Rome Statute requiring reparation; and
(ii) requests that the order be enforced in accordance with article 109 of the Rome
Statute; and
(b) neither the conviction in respect of which the order was imposed nor the order requiring
reparation is subject to further appeal.

ome
Statute; and
(b) neither the conviction in respect of which the order was imposed nor the order requiring
reparation is subject to further appeal.

(2) The Director of Public Prosecutions shall give authority for the request to proceed if he is satisfied
that the order—
(a) requires reparation; and
(b) is of a kind that can be enforced in the manner provided in this section. 47

oceed if he is satisfied
that the order—
(a) requires reparation; and
(b) is of a kind that can be enforced in the manner provided in this section. 47

International Crimes Act (Cap. 60) Kenya
(3) If the Director of Public Prosecutions gives authority for the request to proceed—
(a) he shall refer the request to the appropriate Kenyan agency; and
(b) that agency shall, without delay—
(i) in a case where the order requires a monetary payment, take such steps as are
necessary to enforce the order as if it were a judgment of the High Court in favour
of the Republic in a civil matter for an amount equal to the amount of the monetary
payment;
(ii) in a case where the order requires the restitution of assets, property or other tangible
items, take such steps as are necessary to enforce the order as if it were a writ of
restitution awarded in favour of the Republic under section 178 of the Criminal
Procedure Code (Cap. 75); or
(iii) in a case where the order requires another remedy, take such steps as are necessary to
enforce the order as if it were enforceable under the High Court Rules; and
(c) that agency shall, without delay, make such report to the Director of Public Prosecutions on
the results of any action taken as it considers to be appropriate in the circumstances.

ay, make such report to the Director of Public Prosecutions on
the results of any action taken as it considers to be appropriate in the circumstances.

(4) Nothing in this section limits or affects the provision of other types of assistance to the ICC in
relation to an order made under article 75 of the Rome Statute. [Cf. Rome Statute, articles 75(5) and (6), 109(1), Act No. 19 of 2023, Sch.]
120. Enforcement of fines
(1) This section shall apply if—
(a) the ICC—
(i) orders payment of a fine under paragraph 2(a) of article 77 of the Rome Statute; and
(ii) requests that the order be enforced in accordance with article 109 of the Rome
Statute; and
(b) neither the conviction in respect of which the order was imposed nor the order for payment
of a fine is subject to further appeal. (2) The Director of Public Prosecutions shall give authority for the request to proceed if he is satisfied
that the order—
(a) involves a monetary penalty; and
(b) is of a kind that can be enforced in the manner provided in this section. (3) If the Director of Public Prosecutions gives authority for the request to proceed—
(a) he shall refer the request to the appropriate Kenyan agency; and
(b) that agency shall, without delay—
(i) take such steps as are necessary to enforce the order as if it were a fine imposed on
conviction under the Penal Code (Cap.

shall, without delay—
(i) take such steps as are necessary to enforce the order as if it were a fine imposed on
conviction under the Penal Code (Cap.

63); and
(ii) make such report to the Director of Public Prosecutions on the results of any action
taken as it considers to be appropriate in the circumstances. (4) Upon recovery the fine shall be disposed of in such manner as the ICC order may specify. 48

s it considers to be appropriate in the circumstances. (4) Upon recovery the fine shall be disposed of in such manner as the ICC order may specify. 48

International Crimes Act (Cap. 60) Kenya
(5) Nothing in this section limits or affects the provision of other types of assistance to the ICC in
relation to a penalty imposed under article 77 of the Rome Statute. [Cf. Rome Statute, articles 77(2)(a), 109(1)]
[Act No. 19 of 2023, Sch.]
Assistance with Enforcement of Forfeiture Orders
121. Request for forfeiture of property
Where—
(a) the ICC makes an order under paragraph 2(b) of article 77 of the Rome Statute for the forfeiture
of any property and requests assistance under paragraph 1 of article 109 of the Rome Statute to
enforce the forfeiture order; and
(b) neither the conviction in respect of which the order was imposed nor the forfeiture order is subject
to further appeal, the Director of Public Prosecutions may act on the request if he is satisfied that
the order is of a kind that can be enforced in the manner provided in sections 122 to 126. [Cf. Rome Statute, articles 77(2)(b), 109(1)]
[Act No. 19 of 2023, Sch.]
122. Application for registration of forfeiture order
(1) The Director of Public Prosecutions may apply to the High Court for the registration of a forfeiture
order or an amendment to such an order.

order
(1) The Director of Public Prosecutions may apply to the High Court for the registration of a forfeiture
order or an amendment to such an order.

(2) On an application under subsection (1), the Court shall register the order or the amendment to the
order under section 123 if it is satisfied that the order or amendment to the order is in force. [Act No. 19 of 2023, Sch.]
123. Manner of registration of order
(1) A forfeiture order, or an amendment to such an order, shall be registered in the High Court by the
registration in accordance with the prescribed procedure, if any, of—
(a) a copy of the order or amendment sealed by the ICC; or
(b) a copy of the order or amendment authenticated in accordance with subsection (2). (2) A document is authenticated for the purposes of subsection (1)(b) if it purports to be—
(a) signed or certified by a Judge, the Registrar, the Deputy Registrar, or an authorized member
of the staff of the ICC; or
(b) authenticated in any other manner authorised by the Rome Statute or the ICC Rules. (3) An amendment to a forfeiture order does not, for the purposes of this Act, have any effect until it is
registered.

Rome Statute or the ICC Rules. (3) An amendment to a forfeiture order does not, for the purposes of this Act, have any effect until it is
registered.

(4) A facsimile copy of a sealed or authenticated copy of an order or an amendment of an order has the
same effect, for the purposes of this Act, as the sealed or authenticated copy that is not a facsimile. (5) Notwithstanding subsection (4), registration effected by means of a facsimile copy ceases to have
effect on the expiry of the period of twenty-one days commencing on the date of registration
unless, before the expiry of that period, the sealed or authenticated copy is registered. 49

of twenty-one days commencing on the date of registration
unless, before the expiry of that period, the sealed or authenticated copy is registered. 49

International Crimes Act (Cap. 60) Kenya
124. Notice of registration of order
If the High Court registers an order under section 123, the Court may direct the Director of Public
Prosecutions to do either or both of the following—
(a) give notice of the registration, in the manner and within the time the Court considers appropriate,
to such persons (other than a person convicted of an offence in respect of which the order was
made) as the Court has reason to believe may have an interest in the property;
(b) publish notice of the registration in the manner and within the time the Court considers
appropriate. [Act No. 19 of 2023, Sch.]
125. Effect of registration of order
(1) Where a forfeiture order is registered under section 123—
(a) the property shall, to the extent of the estate, interest or rights (if any) specified in the
forfeiture order, be thereby vested in the Republic;
(b) the property is so vested subject to every charge or encumbrance to which the property was
subject immediately before the forfeiture order was made and, in the case of land under the
provisions of the Registration of Titles Act ( Cap.

ty was
subject immediately before the forfeiture order was made and, in the case of land under the
provisions of the Registration of Titles Act ( Cap.

281), is subject to every mortgage, lease or
other interest recorded under that Act;
(c) if the property is not already in the possession of the Republic, the Republic may take
possession of the property;
(d) the property shall not, except with the leave of the High Court and in accordance with
any directions of the Court, be disposed of, or otherwise dealt with, by or on behalf of the
Republic, before the relevant time; and
(e) if, at the relevant time, the forfeiture order has not been discharged or revoked—
(i) the property shall be disposed of in accordance with any direction of the High Court;
and
(ii) the proceeds shall be dealt with in accordance with section 130. (2) In subsection (1), "relevant time", in relation to property that is the subject of a forfeiture order,
means—
(a) if no appeal against either the forfeiture order or the conviction in respect of which it was
made is lodged within the period prescribed for doing so—the expiration of that period; or
(b) if any such appeals are lodged—the time when all such appeals have lapsed or been finally
determined. (3) Subsection (1) shall have effect subject to sections 127 and 128. 126.

dged—the time when all such appeals have lapsed or been finally
determined. (3) Subsection (1) shall have effect subject to sections 127 and 128. 126.

Forfeiture order may be treated as pecuniary penalty order
(1) If the Director of Public Prosecutions is unable to give effect to a forfeiture order, the Director of
Public Prosecutions shall take measures to recover—
(a) the value specified by the ICC as the value of the property ordered by the ICC to be forfeited;
or
(b) if the ICC has not specified the value of the property, the value that, in the opinion of
the Director of Public Prosecutions, is the value of the property ordered by the ICC to be
forfeited. 50

e property, the value that, in the opinion of
the Director of Public Prosecutions, is the value of the property ordered by the ICC to be
forfeited. 50

International Crimes Act (Cap. 60) Kenya
(2) In a case to which subsection (1) applies, the forfeiture order is to be treated as a fine ordered to
paid under the Penal Code (Cap. 63) for the equivalent amount and may be enforced accordingly as
if it were a fine imposed on the date the forfeiture order was registered under this Act. [Cf. Rome Statute, article 109(2)]
[Act No. 19 of 2023, Sch.]
127. Third parties may apply for relief
(1) If a forfeiture order is registered under section 123, a person (other than a person convicted of an
offence in respect of which the order was made) who claims an interest in any of the property to
which the order relates may apply to the High Court for an order under section 128. (2) A person on whom notice of the hearing of the ICC held in connection with the making of the
forfeiture order was served, or who appeared at the hearing, may not make an application under
subsection (1) without the leave of the High Court.

the
forfeiture order was served, or who appeared at the hearing, may not make an application under
subsection (1) without the leave of the High Court.

(3) The High Court shall not grant leave under subsection (2) unless it is satisfied that—
(a) the applicant had good reason for failing to attend the hearing held by the ICC in connection
with the making of the forfeiture order;
(b) evidence proposed to be adduced by the applicant in connection with the application under
subsection (1) was not reasonably available to the applicant at the time of the hearing of the
ICC; or
(c) there are special reasons justifying the grant of leave. (4) An application under subsection (1) shall be made before the expiry of the period of two months
beginning on the date on which the forfeiture order is registered in the High Court. (5) Notwithstanding subsection (4), the High Court may grant a person leave to make an application
under subsection (1) after the expiry of the period referred to in subsection (4) if it is satisfied that
the person’s failure to apply within that period was not owing to any neglect on the person’s part. (6) A person who makes an application under subsection (1) shall serve notice of the application on the
Director of Public Prosecutions, who shall be a party to any proceedings on the application.

bsection (1) shall serve notice of the application on the
Director of Public Prosecutions, who shall be a party to any proceedings on the application.

(7) This section and section 128 shall have effect subject to any contrary provision in the Rome Statute
or the ICC Rules. [Cf. Rome Statute, articles 77(2)(b), 109(1)]
[Act No. 19 of 2023, Sch.]
128. Court may grant relief to third party
(1) This section shall apply if—
(a) a person applies to the High Court for an order under this section in respect of an interest in
property; and
(b) the Court is satisfied that the applicant’s claim is valid. (2) The High Court shall make an order—
(a) declaring the nature, extent, and value of the applicant’s interest in the property; and
(b) either—
(i) directing that the interest be transferred to the applicant; or
51

extent, and value of the applicant’s interest in the property; and
(b) either—
(i) directing that the interest be transferred to the applicant; or
51

International Crimes Act (Cap. 60) Kenya
(ii) declaring that payment be made to the applicant of an amount equal to the value of
the interest declared by the Court. (3) Notwithstanding subsection (2), the Court may, if it thinks fit, refuse to make an order under that
subsection if it is satisfied that—
(a) the applicant was, in any respect, involved in the commission of the offence in respect of
which the order was made; or
(b) although the applicant acquired the interest at the time of or after the commission of the
offence, it was not acquired in good faith and for value. 129. Cancellation of registration of order
(1) If a forfeiture order has been registered under section 123, the Director of Public Prosecutions may
apply to the High Court for cancellation of the registration.

ure order has been registered under section 123, the Director of Public Prosecutions may
apply to the High Court for cancellation of the registration.

(2) Without limiting the generality of subsection (1), the Director of Public Prosecutions may act under
that subsection in relation to a forfeiture order if—
(a) the order has, since its registration in Kenya, ceased to have effect;
(b) the order was registered in contravention of section 121;
(c) the Director of Public Prosecutions considers that cancellation is appropriate having regard
to the arrangements in force with the ICC in relation to the enforcement of orders of that
kind; or
(d) the ICC so requests. (3) If, in accordance with subsection (1), the Director of Public Prosecutions applies to the High Court
for cancellation of the registration of a forfeiture order, the Court shall cancel the registration
accordingly. (4) If a forfeiture order registered under section 123 is discharged (in whole or in part) or is revoked,
that discharge or revocation constitutes a ground for an application for cancellation of the order
under this section. [Act No. 19 of 2023, Sch.]
Transfer of Money or Property Recovered under this Part
130.

application for cancellation of the order
under this section. [Act No. 19 of 2023, Sch.]
Transfer of Money or Property Recovered under this Part
130.

Money or property recovered to be transferred to ICC
(1) Any money or property, including the proceeds of sale of property, recovered as a result of the
enforcement under this Part of an order of the ICC shall be transferred to the ICC. (2) Subsection (1) shall have effect notwithstanding any other provision in this Part or in any other Act. [Cf. Rome Statute, articles 75(5), 109(3).]
Part VII – PERSONS IN TRANSIT TO ICC OR SERVING SENTENCES IMPOSED BY ICC
Person in Transit
131. Transit by person being surrendered or transferred to ICC
(1) This section and sections 132, 133, and 145 to 151 shall apply to a person (hereinafter referred to as
"the transferee") who—
(a) is being surrendered to the ICC by another State under article 89 of the Rome Statute;
52

erson (hereinafter referred to as
"the transferee") who—
(a) is being surrendered to the ICC by another State under article 89 of the Rome Statute;
52

International Crimes Act (Cap. 60) Kenya
(b) is a person to whom paragraph 7 of article 93 of the Rome Statute applies, and is being
temporarily transferred to the ICC by another State; or
(c) is a person sentenced to imprisonment by the ICC and who is being transferred to or from
the ICC, or between States, in connection with that sentence. (2) The transferee may be transported through Kenya for the purpose of being surrendered or
transferred to the ICC or to another State, as the case may be. (3) Before the transferee is transported through Kenya under subsection (2), the ICC shall first transmit
a request for transit in accordance with article 87 of the Rome Statute that contains the following
information and documents—
(a) a description of the transferee;
(b) in the case of a person described in subsection (1)(a)—
(i) a brief statement of the facts of the case and their legal characterisation; and
(ii) a copy of the warrant for arrest and surrender;
(c) in the case of a person described in subsection (1)(b), such information as the Cabinet
Secretary may request about the reasons for the temporary transfer.

e case of a person described in subsection (1)(b), such information as the Cabinet
Secretary may request about the reasons for the temporary transfer.

(4) Notwithstanding subsection (3), the Cabinet Secretary shall not refuse a request for transit unless
the Cabinet Secretary considers that transit through Kenya would impede or delay the surrender or
transfer of the transferee. (5) Notwithstanding subsection (3), no authorisation for transit is required if the transferee is
transported by air and no landing is scheduled on Kenyan territory. (6) If an unscheduled landing occurs on Kenyan territory, the Cabinet Secretary may require the ICC
to submit a request for transit of the transferee under subsection (3) as soon as is reasonably
practicable. [Cf. Rome Statute, article s 89(3), 93(1)(f) and (7).]
132. Transferee to be held in custody
(1) The transferee shall, during the period of transit, be detained in custody in accordance with
subsection (2).

32. Transferee to be held in custody
(1) The transferee shall, during the period of transit, be detained in custody in accordance with
subsection (2).

(2) If the aircraft or ship that transports a transferee lands or calls at any place in Kenya—
(a) the person holding the transferee in custody before the landing or call is made may hold the
transferee in his custody or in police custody for a period not exceeding ninety-six hours; and
(b) a High Court may, on the application of a member of the National Police Service, order that
the transferee be held in custody for such further period or periods as the Court considers
reasonably necessary to facilitate the transportation of the transferee to the ICC or to
another State, as the case may be. (3) If an unscheduled landing occurs and the ICC is required under section 131(6) to submit a request
for transit, the transferee shall be held in custody under subsection (2). (4) If subsection (3) applies, the period of detention of the transferee may not be extended beyond
ninety-six hours from the time of the unscheduled landing, unless the request for transit from the
ICC is received within that time.

e extended beyond
ninety-six hours from the time of the unscheduled landing, unless the request for transit from the
ICC is received within that time.

(5) If the High Court orders, under subsection (2)(b), that a transferee be held in custody, the transferee
may be detained in a prison or any other place in which a person could be detained under section
38. [Cf. Rome Statute, article 89(3).]
53

transferee
may be detained in a prison or any other place in which a person could be detained under section
38. [Cf. Rome Statute, article 89(3).]
53

International Crimes Act (Cap. 60) Kenya
133. Cabinet Secretary to make removal order or issue certificate
(1) If a transferee is not removed before or at the expiry of all periods of custody under section 132(2),
the Cabinet Secretary shall either—
(a) make a removal order under section 148; or
(b) issue a certificate under section 145 giving the transferee temporary authority to remain in
Kenya. (2) Notwithstanding subsection (1), no removal order may be made under section 148 unless—
(a) the Cabinet Secretary first consults with the ICC; and
(b) it is not possible for the Cabinet Secretary and the ICC to reach agreement relating to the
prompt removal of the transferee. (3) The Cabinet Secretary shall not issue the certificate referred to in subsection (1)(b) unless the
Cabinet Secretary is satisfied that, because of the special circumstances of the transferee, it would
be inappropriate to make a removal order. Enforcement of Sentences in Kenya
134.

hat, because of the special circumstances of the transferee, it would
be inappropriate to make a removal order. Enforcement of Sentences in Kenya
134.

Kenya may act as State of enforcement
(1) The Cabinet Secretary 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 Cabinet Secretary 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 (2), the Cabinet Secretary shall consult with—
(a) the Inspector-General of Police;
(b) the Principal Secretary in the Ministry responsible for prisons; and
(c) the Principal Secretary in the Ministry responsible for labour. (4) If advice is given under subsection (1), the Cabinet Secretary may, at any time, advise the ICC that
Kenya is no longer willing to allow ICC prisoners to serve their sentences in Kenya.

(1), the Cabinet Secretary 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
Cabinet Secretary has accepted the designation of the ICC under section 135(1)(c). [Cf. Rome Statute, article 103(1) and (2).]
135. Request for sentence to be served in Kenya
(1) This section and sections 136 to 151 shall apply if—
(a) the Cabinet Secretary 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
54

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
54

International Crimes Act (Cap. 60) Kenya
(ii) convicted of an offence against the administration 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 Cabinet Secretary accepts the designation, the Cabinet Secretary 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 Inspector-General of Police;
(b) the Principal Secretary in the Ministry responsible for prisons; and
(c) the Principal Secretary in the Ministry responsible for labour.

f Police;
(b) the Principal Secretary in the Ministry responsible for prisons; and
(c) the Principal Secretary in the Ministry responsible for labour.

(3) The Cabinet Secretary 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 Cabinet Secretary thinks appropriate. 136. Prisoner to be held in custody
(1) If the Cabinet Secretary accepts the designation of Kenya as the State in which a sentence of
imprisonment imposed by the ICC is to be served, the ICC prisoner may be transported to Kenya in
the custody of—
(a) a member of the National Police Service;
(b) a prison officer; or
(c) a person authorised for the purpose by the ICC.

to Kenya in
the custody of—
(a) a member of the National Police Service;
(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
(Cap. 90) 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. [Cf. Rome Statute, articles 106, 110(1).]
55

ions by the prisoner without the presence of any other
person, except any representative of the prisoner. [Cf. Rome Statute, articles 106, 110(1).]
55

International Crimes Act (Cap. 60) Kenya
137. Order for detention to act as authority for detention. The order for detention issued by the Cabinet Secretary under section 135(2) shall, for the purposes of this
Part and the Prisons Act (Cap. 90), 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. Sentence to be served in accordance with Rome Statute
(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 (Cap. 63) or the
Prisons Act (Cap.

ent that is served in Kenya by an
ICC prisoner, there is any inconsistency between the provisions of the Penal Code (Cap. 63) or the
Prisons Act (Cap.

90) and the provisions of the Rome Statute and the ICC Rules, the provisions of
that Statute and those Rules shall prevail. [Cf. Rome Statute, articles 106(1), 110(1) and (2).]
139. Transfer of prisoner to ICC for review of sentence
(1) Where the ICC, under article 110 of the Rome Statute, decides to review the sentence of an ICC
prisoner who is serving that sentence in Kenya, the Cabinet Secretary 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 Cabinet Secretary 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 Cabinet Secretary gives a direction under subsection (1), the Cabinet Secretary shall forward a
notice of the direction to each of the following persons—
(a) the Inspector-General of Police;
(b) the Principal Secretary in the Ministry responsible for prisons; and
(c) the Principal Secretary in the Ministry responsible for labour.

f Police;
(b) the Principal Secretary in the Ministry responsible for prisons; and
(c) the Principal Secretary in the Ministry responsible 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 National Police Service; or
(b) a prison officer; or
(c) a person authorised for the purpose by the ICC. [Cf. Rome Statute, articles 105(2), 110(3) and (5).]
140. Transfer of prisoner to ICC for other purposes
(1) This section shall apply if the ICC—
(a) directs that an ICC prisoner appear before it to give evidence in another case; or
56

for other purposes
(1) This section shall apply if the ICC—
(a) directs that an ICC prisoner appear before it to give evidence in another case; or
56

International Crimes Act (Cap. 60) Kenya
(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
Cabinet Secretary is satisfied that the interests of justice require the prisoner’s attendance at
the ICC. (3) If the Cabinet Secretary gives a direction under subsection (2), section 139(2) and (3) shall apply,
with any necessary modifications. (4) This section shall not apply if the request by the ICC is a request to which section 90(1) applies. 141. Transfer of prisoner to another State to complete sentence
If an ICC prisoner of any nationality is to be 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 National Police Service;
(b) a prison officer; or
(c) a person authorised for the purpose by the ICC. [Cf. Rome Statute, article 104(1).]
142.

of the National Police Service;
(b) a prison officer; or
(c) a person authorised for the purpose by the ICC. [Cf. Rome Statute, article 104(1).]
142.

Cabinet Secretary to make removal order or issue certificate
(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 Cabinet Secretary 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 Cabinet Secretary shall not issue the certificate referred to in subsection (1)(b) unless the
Cabinet Secretary 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. [Cf. Rome Statute, article 107(1).]
143.

for any other reason in the interests of
justice. (3) This section shall have effect subject to section 143. [Cf. Rome Statute, article 107(1).]
143.

Special rules in certain cases
(1) An ICC prisoner serving a sentence in Kenya may—
(a) be extradited to another country in accordance with the Extradition (Commonwealth
Countries) Act (Cap. 77) or the Extradition (Contiguous and Foreign Countries) Act (Cap. 76),
either—
(i) at the completion of the sentence; or
57

lth
Countries) Act (Cap. 77) or the Extradition (Contiguous and Foreign Countries) Act (Cap. 76),
either—
(i) at the completion of the sentence; or
57

International Crimes Act (Cap. 60) Kenya
(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. [Cf. Rome Statute, articles 107(3), 108.]
144.

elease from, the sentence imposed by the ICC; or
(b) voluntarily returns to Kenya after having left it. [Cf. Rome Statute, articles 107(3), 108.]
144.

Extradition of escaped ICC prisoner
(1) Where—
(a) an ICC prisoner serving a sentence in another State escapes from custody and is located in
Kenya; and
(b) the State designated by the ICC as the State of enforcement of the sentence makes a request
to Kenya for extradition in accordance with article 111 of the Rome Statute, the provisions
of the Extradition (Commonwealth Countries) Act (Cap. 77) or the Extradition (Contiguous
and Foreign Countries) Act (Cap. 76), as the case may require, shall, with any necessary
modifications, apply to a request for extradition as if the request related to a person who
had been convicted of an extradition offence or extradition crime within the meaning of the
relevant Act. (2) Where—
(a) an ICC prisoner serving a sentence in Kenya escapes from custody and is located in another
State; and
(b) the Cabinet Secretary wishes to make a request to that State for the person’s extradition in
accordance with article 111, the Cabinet Secretary may make a request for the prisoner’s
extradition under the Extradition (Commonwealth Countries) Act (Cap. 77) or the
Extradition (Contiguous and Foreign Countries) Act (Cap.

he prisoner’s
extradition under the Extradition (Commonwealth Countries) Act (Cap. 77) or the
Extradition (Contiguous and Foreign Countries) Act (Cap.

76), and the relevant Act shall,
with any necessary modifications, apply as if the request related to a person who had been
convicted of an extradition offence or extradition crime within the meaning of the relevant
Act. [Cf. Rome Statute, Article 111.]
Certificates and Removal Orders
145. Certificate giving temporary authority to remain in Kenya
(1) A certificate issued by the Cabinet Secretary under this section—
(a) may be issued for a period, not exceeding three months, specified in the certificate;
58

icate issued by the Cabinet Secretary under this section—
(a) may be issued for a period, not exceeding three months, specified in the certificate;
58

International Crimes Act (Cap. 60) Kenya
(b) may, from time to time, be renewed for one further period not exceeding three months; and
(c) may, if the Cabinet Secretary thinks fit, order that the person named in the certificate be
taken into custody. (2) The certificate is, while it remains in force, sufficient authority for the person named in the
certificate to remain in Kenya. (3) If the Cabinet Secretary issues a certificate, he may refer the person’s case to the Cabinet Secretary
responsible for immigration for consideration under section 40 of the Kenya Citizenship and
Immigration Act (Cap. 170) and, in that case, that section shall apply for the purposes of this
section as if the person were a person required to hold a permit under that Act to be in Kenya. (4) Except as provided in subsection (3), nothing in the Kenya Citizenship and Immigration Act (Cap. 170) shall apply to the person named in the certificate while the certificate is in force. 146.

ing in the Kenya Citizenship and Immigration Act (Cap. 170) shall apply to the person named in the certificate while the certificate is in force. 146.

Cancellation of certificate
The Cabinet Secretary shall cancel the certificate issued under section 145 and make a removal order
under section 148 in respect of a person if—
(a) where the Cabinet Secretary referred the person’s case to the Cabinet Secretary responsible for
immigration under section 145(3)—
(i) the Cabinet Secretary responsible for immigration declines to grant a permit under the
Kenya Citizenship and Immigration Act (Cap. 170); and
(ii) there do not appear to the Cabinet Secretary to be any other grounds on which the person
should be permitted to remain in Kenya; or
(b) in any other case, there do not appear to the Cabinet Secretary to be any other grounds on which
the person should be permitted to remain in Kenya. 147. Further provisions relating to certificate
(1) If a certificate issued under section 145 orders that a person be taken into custody, the certificate is
sufficient authority for a member of the National Police Service to arrest the person and take him
into custody.

aken into custody, the certificate is
sufficient authority for a member of the National Police Service to arrest the person and take him
into custody.

(2) A person who is taken into custody under this section shall, unless sooner released, be brought
before a Judge of the High Court—
(a) as soon as possible; and
(b) after that, every twenty-one days while the certificate is in force, to determine, in accordance
with subsection (3), if the person should be detained in custody or released pending the
decisions referred to in section 145. (3) If a person is brought before a Judge of the High Court under subsection (2) , the Judge may, if the
Judge is satisfied that the person is the person named in the certificate—
(a) issue a warrant for the detention of the person in custody if the Judge is satisfied that, if not
detained, the person is likely to abscond; or
(b) order the release of the person subject to such conditions, if any, that the Judge thinks fit. (4) A warrant for the detention of the person issued under subsection (3)(a) may authorise the
detention of the person in a prison or any other place in which a person could be detained under
section 38. 59

er subsection (3)(a) may authorise the
detention of the person in a prison or any other place in which a person could be detained under
section 38. 59

International Crimes Act (Cap. 60) Kenya
148. Removal order
(1) A removal order made by the Cabinet Secretary under this section—
(a) may either—
(i) require the person who is the subject of the order to be released into or taken into the
custody of a member of the National Police Service; or
(ii) if the person is not in custody, authorise any member of the National Police Service to
take the person into custody;
(b) shall specify that the person is to be taken by a member of the National Police Service and
placed on board any craft for the purpose of effecting the person’s removal from Kenya; and
(c) may authorise the detention in custody of the person while awaiting removal from Kenya. (2) The removal order shall be served on the person named in the order by personal service. (3) If the removal order authorises the detention of the person in custody, the person may be detained
—
(a) in a prison, or any other place in which a person could be detained under section 38; or
(b) at a seaport or airport. (4) A removal order made under this section continues in force until it is executed or cancelled. 149.

der section 38; or
(b) at a seaport or airport. (4) A removal order made under this section continues in force until it is executed or cancelled. 149.

Delay in removal
(1) If a person is not able to be conveyed out of Kenya within forty-eight hours after service of a
removal order issued under section 148, the person shall be brought before a Judge of the High
Court to determine, in accordance with subsection (2), whether the person should be detained in
custody or released pending removal from Kenya. (2) If a person is brought before a Judge of the High Court under subsection (1), the Judge may, if the
Judge is satisfied that the person is the person named in the order—
(a) issue a warrant for the detention of the person in custody if the Judge is satisfied that, if not
detained, the person is likely to abscond; or
(b) order the release of the person subject to such conditions, if any, that the Judge thinks fit. (3) A warrant for the detention of the person issued under subsection (2)(a) may authorise the
detention of the person in any place specified in section 148(3). 150. Immigration permit not required
A person to whom this Part applies is not required to hold a permit under the Kenya Citizeship and
Immigration Act (Cap.

migration permit not required
A person to whom this Part applies is not required to hold a permit under the Kenya Citizeship and
Immigration Act (Cap.

170) if, and for so long as, he is in Kenya in accordance with this Part (whether or
not he is in custody). 151. Kenyan citizens
Nothing in this Part authorises the making of a removal order under section 148 in respect of a Kenyan
citizen. 60

s in custody). 151. Kenyan citizens
Nothing in this Part authorises the making of a removal order under section 148 in respect of a Kenyan
citizen. 60

International Crimes Act (Cap. 60) Kenya
Part VIII – PROTECTION OF NATIONAL
SECURITY OR THIRD PARTY INFORMATION
National Security
152. National security issues to be dealt with under article 72
If an issue relating to Kenya’s national security interests arises at any stage of any proceedings before the
ICC, the issue shall be dealt with in the manner provided in article 72 of the Rome Statute and this Part. [Cf. Rome Statute, article 72(1) and (4).]
153. Part 9 request involving national security
(1) If a request for assistance made under Part 9 of the Rome Statute appears to concern the production
of any documents or disclosure of evidence that would, in the opinion of the Director of Public
Prosecutions, prejudice Kenya’s national security interests, that request shall be dealt with in
accordance with the process specified in sections 156 and 157. (2) If, having followed the specified process the matter is not able to be resolved, the Director of Public
Prosecutions may refuse the request or decline to authorise the production of the documents or
giving of the evidence, as the case may be. [Cf. Rome Statute, articles 72(1), 93(4), 99(5)]
[Act No. 19 of 2023, Sch.]
154.

ction of the documents or
giving of the evidence, as the case may be. [Cf. Rome Statute, articles 72(1), 93(4), 99(5)]
[Act No. 19 of 2023, Sch.]
154.

Information or evidence involving national security
(1) Where a person who has been requested to give information or evidence—
(a) refuses to do so on the ground that disclosure would prejudice the national security interests
of Kenya; or
(b) refers the matter to the Director of Public Prosecutions on the ground that disclosure would
prejudice the national security interests of Kenya, the Director of Public Prosecutions shall
determine whether or not he is of the opinion that the giving of information or evidence
would prejudice Kenya’s national security interests. (2) If the Director of Public Prosecutions confirms that he is of the opinion that disclosure would
prejudice Kenya’s national security interests, the matter shall be dealt with in accordance with the
process specified in sections 156 and 157. (3) If, having following the specified process, the matter has not been resolved, the Director of Public
Prosecutions may refuse the request or decline to authorise the provision of the information or
giving of the evidence, as the case may be. [Cf. Rome Statute, articles 72(2), 93(4)]
[Act No. 19 of 2023, Sch.]
155.

provision of the information or
giving of the evidence, as the case may be. [Cf. Rome Statute, articles 72(2), 93(4)]
[Act No. 19 of 2023, Sch.]
155.

Other situations involving national security
(1) If, in any circumstances other than those specified in sections 153 and 154, the Director of Public
Prosecutions 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. 61

uld
prejudice Kenya’s national security interests, the matter shall be dealt with in accordance with the
process specified in sections 156 and 157. 61

International Crimes Act (Cap. 60) Kenya
(2) Without limiting subsection (1), this section shall apply if the Director of Public Prosecutions
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
Director of Public Prosecutions may refuse the request or decline to authorise the provision of the
information or giving of the evidence, as the case may be. [Act No. 19 of 2023, Sch.]
156. Consultation with ICC required
The Director of Public Prosecutions shall consult with the ICC and, if appropriate, the defence, in
accordance with paragraph 5 of article 72 of the Rome Statute. [Cf. Rome Statute, article 72(5)]
[Act No. 19 of 2023, Sch.]
157.

iate, the defence, in
accordance with paragraph 5 of article 72 of the Rome Statute. [Cf. Rome Statute, article 72(5)]
[Act No. 19 of 2023, Sch.]
157.

Procedure where no resolution
(1) If, after consultation, the Director of Public Prosecutions 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 Director of Public Prosecutions 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 154 and the
Director of Public Prosecutions 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.

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 Director of Public Prosecutions 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. [Cf. Rome Statute, articles 72(6) and (7), 93(4)]
[Act No. 19 of 2023, Sch.]
158. Director of Public Prosecutions to take into account ICC’s ability to refer matter to
Security Council
In determining what action to take in relation to a matter to which this Part applies, the Director of Public
Prosecutions 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
62

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
62

International Crimes Act (Cap. 60) Kenya
the ICC considers that a requested State is not acting in accordance with its obligations under the Rome
Statute. [Cf. Rome Statute, articles 72(7)(a)(ii), 87(7).]
[Act No. 19 of 2023, Sch.]
Information Provided by Third Parties
159. Disclosure of information provided by third party
(1) If the ICC requests the provision of a document or information that was provided or disclosed
to Kenya in confidence by another State, intergovernmental organisation, or international
organisation, the Director of Public Prosecutions shall seek the consent of the originator before
providing that document or information to the ICC. (2) If the originator is a State Party that consents to disclosure of the information or document,
the Director of Public Prosecutions shall, subject to article 72 of the Rome Statute, provide that
information or document to the ICC. (3) If the originator is a State Party that undertakes to resolve the issue of disclosure with the ICC
under article 73, the Director of Public Prosecutions shall inform the ICC of that undertaking.

rtakes to resolve the issue of disclosure with the ICC
under article 73, the Director of Public Prosecutions shall inform the ICC of that undertaking.

(4) If the originator is not a State Party and refuses to consent to disclosure, the Director of Public
Prosecutions shall inform the ICC that he is unable to provide the document or information because
of an existing obligation of confidentiality to the originator. [Cf. Rome Statute, articles 72, 73]
[Act No. 19 of 2023, Sch.]
160. Request for Kenya’s consent to disclosure
(1) Where a request is received from another State for Kenya’s consent to the disclosure to the ICC of a
document or information that had been disclosed to the State in confidence, the Director of Public
Prosecutions shall either—
(a) consent to the disclosure; or
(b) undertake to resolve the matter with the ICC. (2) The provision of an undertaking under subsection (1)(b) does not prevent the Director of Public
Prosecutions from refusing the assistance sought in accordance with section 159(4). [Cf. Rome Statute, article 73]
[Act No. 19 of 2023, Sch.]
Part IX – INVESTIGATIONS OR SITTINGS OF ICC IN KENYA
161.

in accordance with section 159(4). [Cf. Rome Statute, article 73]
[Act No. 19 of 2023, Sch.]
Part IX – INVESTIGATIONS OR SITTINGS OF ICC IN KENYA
161.

Prosecutor may conduct investigations in Kenya
The Prosecutor may conduct investigations in Kenyan territory—
(a) in accordance with the provisions of Part 9 of the Rome Statute and as specified in section 23; or
(b) as authorised by the Pre-Trial Chamber under paragraph 3(d) of article 57 of the Rome Statute. [Cf. Rome Statute, articles 54(3), 57(3)(d), 99(1) and (4).]
63

rised by the Pre-Trial Chamber under paragraph 3(d) of article 57 of the Rome Statute. [Cf. Rome Statute, articles 54(3), 57(3)(d), 99(1) and (4).]
63

International Crimes Act (Cap. 60) Kenya
162. ICC sittings in Kenya
The ICC may sit in Kenya for the purpose of performing any of its functions under the Rome Statute and
under the ICC Rules, including any of the following—
(a) taking evidence;
(b) conducting or continuing any proceedings;
(c) giving judgment in any proceedings;
(d) reviewing a sentence. [Cf. Rome Statute, articles 3(3), 62.]
163. ICC’s powers while sitting in Kenya
While the ICC is sitting in Kenya, it may exercise its functions and powers as provided under the Rome
Statute and under the ICC Rules. [Cf. Rome Statute, articles 4(2), 64.]
164. ICC may administer oaths in Kenya
The ICC may, at any sitting of the ICC in Kenya, administer an oath or affirmation giving an undertaking as
to truthfulness in accordance with the practice and procedure of the ICC. [Cf. Rome Statute, article 69(1).]
165.

affirmation giving an undertaking as
to truthfulness in accordance with the practice and procedure of the ICC. [Cf. Rome Statute, article 69(1).]
165.

Orders made by ICC not subject to review
No application for review under any provision of the enacted law, and no application for an order of
mandamus or prohibition or certiorari or for a declaration or injunction may be brought in respect of any
judgment or order or determination of the ICC that is made or given at a sitting of the ICC in Kenya. 166. Power to detain ICC prisoners in Kenya prisons if ICC holds sitting in Kenya
(1) A person in Kenya shall be kept in custody as the Cabinet Secretary directs in writing if—
(a) the ICC holds any sitting in Kenya; and
(b) the ICC requests that the person whose presence is required at the proceedings be held in
custody as an ICC prisoner while the sitting continues in Kenya. (2) A direction given under subsection (1) in respect of an ICC prisoner is sufficient authority for the
detention of that prisoner in accordance with the terms of the direction. (3) If an ICC prisoner is directed to be detained in a prison under subsection (1), the prisoner shall be
treated in conformity with international human rights law and the Prisons Act (Cap.

e detained in a prison under subsection (1), the prisoner shall be
treated in conformity with international human rights law and the Prisons Act (Cap.

90), so far as
applicable and with all necessary modifications, shall apply with respect to that prisoner as if the
prisoner had been remanded in custody or sentenced to imprisonment for an offence against the
law of Kenya, as the case may require, and is liable to be detained in a prison under such an order or
sentence. (4) or the purposes of sections 122, 123 and 124 of the Penal Code (Cap. 63), (which relate to rescue
or escape from lawful custody), an ICC prisoner who is in custody in a Kenyan prison or other
detention facility shall be deemed to be in lawful custody while in Kenya. [Cf. Rome Statute, article 63.]
64

s in custody in a Kenyan prison or other
detention facility shall be deemed to be in lawful custody while in Kenya. [Cf. Rome Statute, article 63.]
64

International Crimes Act (Cap. 60) Kenya
167. Removal of ICC prisoner
If the Cabinet Secretary is satisfied that the presence of an ICC prisoner who was the subject of a
direction under section 166(1) is no longer necessary, sections 145 to 151 shall apply, with any necessary
modifications, to that person. Part X – REQUESTS TO ICC FOR ASSISTANCE
168. Director of Public Prosecutions or Cabinet Secretary may request assistance from ICC
The Director of Public Prosecutions or the Cabinet Secretary, as the case may be, may make a request to
the ICC for assistance in accordance with this Part in an investigation into, or trial in respect of, conduct
that may constitute a crime within the jurisdiction of the ICC or that constitutes a crime for which the
maximum penalty under Kenyan law is a term of imprisonment of not less than five years. [Cf. Rome Statute, article 93(1)]
[Act No. 19 of 2023, Sch.]
169. Making of request
An urgent request for assistance may be made or transmitted to the ICC in the manner specified in section
22(1). [Cf. Rome Statute, article 96(4).]
170.

urgent request for assistance may be made or transmitted to the ICC in the manner specified in section
22(1). [Cf. Rome Statute, article 96(4).]
170.

Types of requests to ICC
A request may be made under this Part for any assistance that the ICC may lawfully give, including—
(a) the transmission of statements, documents, or other types of evidence obtained in the course of an
investigation or a trial conducted by the ICC; and
(b) the questioning of any person detained by order of the ICC. [Cf. Rome Statute, article 93 (10)(b)(i).]
Part XI – MISCELLANEOUS PROVISIONS AND CONSEQUENTIAL AMENDMENTS
Miscellaneous Provisions
171. Certificates given by Director of Public Prosecutions
(1) If the Director of Public Prosecutions receives a request for assistance from the ICC to which Part
V relates, the Director of Public Prosecutions may give a certificate certifying all or any of the
following facts—
(a) that a request for assistance has been made by the ICC;
(b) that the request meets the requirements of this Act;
(c) that the acceptance of the request has been duly made under and in accordance with this Act. (2) In any proceedings under this Act, a certificate purporting to have been given under subsection
(1) is, in the absence of proof to the contrary, sufficient evidence of the matters certified by the
certificate. [Act No.

been given under subsection
(1) is, in the absence of proof to the contrary, sufficient evidence of the matters certified by the
certificate. [Act No.

19 of 2023, Sch.]
65

19 of 2023, Sch.]
65

International Crimes Act (Cap. 60) Kenya
172. Regulations
The Cabinet Secretary may make regulations, not inconsistent with this Act, for any of the following
purposes—
(a) prescribing the procedure to be followed in dealing with requests made by the ICC, and providing
for notification of the results of action taken in accordance with any such request;
(b) prescribing the procedures for obtaining evidence or producing documents or other articles in
accordance with a request made by the ICC;
(c) providing for the payment of fees, travelling allowances and expenses to any person in Kenya who
gives or provides evidence or assistance pursuant to a request made by the ICC;
(d) prescribing conditions for the protection of any property sent to the ICC pursuant to a request
made under this Act, and making provision for the return of property in Kenya in accordance with a
request;
(e) prescribing the forms of applications, notices, certificates, warrants, and other documents for the
purposes of this Act, and requiring the use of such forms;
(f) providing for any other matters contemplated by this Act, necessary for its administration, or
necessary for giving it full effect. 173.

ch forms;
(f) providing for any other matters contemplated by this Act, necessary for its administration, or
necessary for giving it full effect. 173.

Regulations to implement Rules of Evidence and Procedure
Without limiting section 174, the Cabinet Secretary may make regulations to implement any obligation
that is placed on State Parties by the ICC Rules if that obligation is not inconsistent with the provisions of
this Act. Consequential Amendments
174. [Spent]
FIRST SCHEDULE [s.

ties by the ICC Rules if that obligation is not inconsistent with the provisions of
this Act. Consequential Amendments
174. [Spent]
FIRST SCHEDULE [s.

2]
ROME STATUTE OF THE INTERNATIONAL CRIMINAL COURT *
PREAMBLE
The States Parties to this Statute,
Conscious that all peoples are united by common bonds, their cultures pieced together in a shared heritage, and
concerned that this delicate mosaic may be shattered at any time,
Mindful that during this century millions of children, women and men have been victims of unimaginable
atrocities that deeply shock the conscience of humanity,
Recognizing that such grave crimes threaten the peace, security and well-being of the world,
Affirming that the most serious crimes of concern to the international community as a whole must not go
unpunished and that their effective prosecution must be ensured by taking measures at the national level and by
enhancing international cooperation,
Determined to put an end to impunity for the perpetrators of these crimes and thus to contribute to the
prevention of such crimes,
Recalling that it is the duty of every State to exercise its criminal jurisdiction over those responsible for
international crimes,
66

of such crimes,
Recalling that it is the duty of every State to exercise its criminal jurisdiction over those responsible for
international crimes,
66

International Crimes Act (Cap. 60) Kenya
Reaffirming the Purposes and Principles of the Charter of the United Nations, and in particular that all States
shall refrain from the threat or use of force against the territorial integrity or political independence of any State,
or in any other manner inconsistent with the Purposes of the United Nations,
Emphasizing in this connection that nothing in this Statute shall be taken as authorizing any State Party to
intervene in an armed conflict or in the internal affairs of any State,
Determined to these ends and for the sake of present and future generations, to establish an independent
permanent International Criminal Court in relationship with the United Nations system, with jurisdiction over
the most serious crimes of concern to the international community as a whole,
Emphasizing that the International Criminal Court established under this Statute shall be complementary to
national criminal jurisdictions,
Resolved to guarantee lasting respect for and the enforcement of international justice,
Have agreed as follows:
Part 1 – ESTABLISHMENT OF THE COURT
Article 1 – The Court
An International Criminal Court (the Court) is hereby established.

,
Have agreed as follows:
Part 1 – ESTABLISHMENT OF THE COURT
Article 1 – The Court
An International Criminal Court (the Court) is hereby established.

It shall be a permanent institution and shall
have the power to exercise its jurisdiction over persons for the most serious crimes of international concern, as
referred to in this Statute, and shall be complementary to national criminal jurisdictions. The jurisdiction and
functioning of the Court shall be governed by the provisions of this Statute. Article 2 – Relationship of the Court with the United Nations
The Court shall be brought into relationship with the United Nations through an agreement to be approved
by the Assembly of States Parties to this Statute and thereafter concluded by the President of the Court on its
behalf. Article 3 – Seat of the Court
1. The seat of the Court shall be established at The Hague in the Netherlands (the host State). 2. The Court shall enter into a headquarters agreement with the host State, to be approved by the Assembly of
States Parties and thereafter concluded by the President of the Court on its behalf. 3. The Court may sit elsewhere, whenever it considers it desirable, as provided in this Statute. Article 4 – Legal status and powers of the Court
1. The Court shall have international legal personality.

s it desirable, as provided in this Statute. Article 4 – Legal status and powers of the Court
1. The Court shall have international legal personality.

It shall also have such legal capacity as may be necessary
for the exercise of its functions and the fulfilment of its purposes. 2. The Court may exercise its functions and powers, as provided in this Statute, on the territory of any State Party
and, by special agreement, on the territory of any other State. 67

ctions and powers, as provided in this Statute, on the territory of any State Party
and, by special agreement, on the territory of any other State. 67

International Crimes Act (Cap. 60) Kenya
Part 2 – JURISDICTION, ADMISSIBILITY AND APPLICABLE LAW
Article 5 – Crimes within the jurisdiction of the Court
1. The jurisdiction of the Court shall be limited to the most serious crimes of concern to the international
community as a whole. The Court has jurisdiction in accordance with this Statute with respect to the following
crimes—
(a) the crime of genocide;
(b) crimes against humanity;
(c) war crimes;
(d) the crime of aggression. 2. The Court shall exercise jurisdiction over the crime of aggression once a provision is adopted in accordance
with articles 121 and 123 defining the crime and setting out the conditions under which the Court shall exercise
jurisdiction with respect to this crime. Such a provision shall be consistent with the relevant provisions of the
Charter of the United Nations.

rcise
jurisdiction with respect to this crime. Such a provision shall be consistent with the relevant provisions of the
Charter of the United Nations.

Article 6 – Genocide
For the purpose of this Statute, genocide means any of the following acts committed with intent to destroy, in
whole or in part, a national, ethnical, racial or religious group, as such—
(a) killing members of the group;
(b) causing serious bodily or mental harm to members of the group;
(c) deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in
whole or in part;
(d) imposing measures intended to prevent births within the group;
(e) forcibly transferring children of the group to another group. Article 7 – Crimes against Humanity
1.

intended to prevent births within the group;
(e) forcibly transferring children of the group to another group. Article 7 – Crimes against Humanity
1.

For the purpose of this Statute, crime against humanity means any of the following acts when committed as
part of a widespread or systematic attack directed against any civilian population, with knowledge of the attack—
(a) murder;
(b) extermination;
(c) enslavement;
(d) deportation or forcible transfer of population;
(e) imprisonment or other severe deprivation of physical liberty in violation of fundamental rules of
international law;
(f) torture;
(g) rape, sexual slavery, enforced prostitution, forced pregnancy, enforced sterilization, or any other form of
sexual violence of comparable gravity;
(h) persecution against any identifiable group or collectively on political, racial, national, ethnic, cultural,
religious, gender as defined in paragraph 3, or other grounds that are universally recognized as
68

on political, racial, national, ethnic, cultural,
religious, gender as defined in paragraph 3, or other grounds that are universally recognized as
68

International Crimes Act (Cap. 60) Kenya
impermissible under international law, in connection with any act referred to in this paragraph or any
crime within the jurisdiction of the Court;
(i) enforced disappearance of persons;
(j) the crime of apartheid;
(k) other inhumane acts of a similar character intentionally causing great suffering, or serious injury to body
or to mental or physical health. 2.

d;
(k) other inhumane acts of a similar character intentionally causing great suffering, or serious injury to body
or to mental or physical health. 2.

For the purpose of paragraph 1—
(a) "attack directed against any civilian population" means a course of conduct involving the multiple
commission of acts referred to in paragraph 1 against any civilian population, pursuant to or in
furtherance of a State or organizational policy to commit such attack;
(b) "extermination" includes the intentional infliction of conditions of life, inter alia the deprivation of access
to food and medicine, calculated to bring about the destruction of part of a population;
(c) "enslavement" means the exercise of any or all of the powers attaching to the right of ownership over a
person and includes the exercise of such power in the course of trafficking in persons, in particular women
and children;
(d) "deportation or forcible transfer of population" means forced displacement of the persons concerned
by expulsion or other coercive acts from the area in which they are lawfully present, without grounds
permitted under international law;
(e) "torture" means the intentional infliction of severe pain or suffering, whether physical or mental, upon a
person in the custody or under the control of the accused;
except that torture shall not include pain or suffering arising only from, inherent in or incidental to, lawful
sanctions;
(f) "forced pregnancy" means the unlawful confinement of a woman forcibly made pregnant, with the
intent of affecting the ethnic composition of any population or carrying out other grave violations of
international law.

ibly made pregnant, with the
intent of affecting the ethnic composition of any population or carrying out other grave violations of
international law.

This definition shall not in any way be interpreted as affecting national laws relating to
pregnancy;
(g) "persecution" means the intentional and severe deprivation of fundamental rights contrary to
international law by reason of the identity of the group or collectively;
(h) "the crime of apartheid" means inhumane acts of a character similar to those referred to in paragraph 1,
committed in the context of an institutionalized regime of systematic oppression and domination by one
racial group over any other racial group or groups and committed with the intention of maintaining that
regime;
(i) "enforced disappearance of persons" means the arrest, detention or abduction of persons by, or with
the authorization, support or acquiescence of, a State or a political organization, followed by a refusal
to acknowledge that deprivation of freedom or to give information on the fate or whereabouts of those
persons, with the intention of removing them from the protection of the law for a prolonged period of
time. 3. For the purpose of this Statute, it is understood that the term "gender" refers to the two sexes, male and
female, within the context of society.

. 3. For the purpose of this Statute, it is understood that the term "gender" refers to the two sexes, male and
female, within the context of society.

The term "gender" does not indicate any meaning different from the above. 69

The term "gender" does not indicate any meaning different from the above. 69

International Crimes Act (Cap. 60) Kenya
Article 8 – War Crimes
1. The Court shall have jurisdiction in respect of war crimes in particular when committed as part of a plan or
policy or as part of a large-scale commission of such crimes. 2. For the purpose of this Statute, "war crimes" means—
(a) grave breaches of the Geneva Conventions of 12 August 1949, namely, any of the following acts against
persons or property protected under the provisions of the relevant Geneva Convention—
(i) wilful killing;
(ii) torture or inhuman treatment, including biological experiments;
(iii) wilfully causing great suffering, or serious injury to body or health;
(iv) extensive destruction and appropriation of property, not justified by military necessity and carried
out unlawfully and wantonly;
(v) compelling a prisoner of war or other protected person to serve in the forces of a hostile Power;
(vi) wilfully depriving a prisoner of war or other protected person of the rights of fair and regular trial;
(vii) unlawful deportation or transfer or unlawful confinement;
(viii) taking of hostages.

r protected person of the rights of fair and regular trial;
(vii) unlawful deportation or transfer or unlawful confinement;
(viii) taking of hostages.

(b) other serious violations of the laws and customs applicable in international armed conflict, within the
established framework of international law, namely, any of the following acts—
(i) intentionally directing attacks against the civilian population as such or against individual civilians
not taking direct part in hostilities;
(ii) intentionally directing attacks against civilian objects, that is, objects which are not military
objectives;
(iii) intentionally directing attacks against personnel, installations, material, units or vehicles involved
in a humanitarian assistance or peacekeeping mission in accordance with the Charter of the United
Nations, as long as they are entitled to the protection given to civilians or civilian objects under the
international law of armed conflict;
(iv) intentionally launching an attack in the knowledge that such attack will cause incidental loss of
life or injury to civilians or damage to civilian objects or widespread, long-term and severe damage
to the natural environment which would be clearly excessive in relation to the concrete and direct
overall military advantage anticipated;
(v) attacking or bombarding, by whatever means, towns, villages, dwellings or buildings which are
undefended and which are not military objectives;
(vi) killing or wounding a combatant who, having laid down his arms or having no longer means of
defence, has surrendered at discretion;
(vii) making improper use of a flag of truce, of the flag or of the military insignia and uniform of the
enemy or of the United Nations, as well as of the distinctive emblems of the Geneva Conventions,
resulting in death or serious personal injury;
(viii) the transfer, directly or indirectly, by the Occupying Power of parts of its own civilian population
into the territory it occupies, or the deportation or transfer of all or parts of the population of the
occupied territory within or outside this territory;
(ix) intentionally directing attacks against buildings dedicated to religion, education, art, science or
charitable purposes, historic monuments, hospitals and places where the sick and wounded are
collected, provided they are not military objectives;
70

charitable purposes, historic monuments, hospitals and places where the sick and wounded are
collected, provided they are not military objectives;
70

International Crimes Act (Cap.

International Crimes Act (Cap.

60) Kenya
(x) subjecting persons who are in the power of an adverse party to physical mutilation or to medical
or scientific experiments of any kind which are neither justified by the medical, dental or hospital
treatment of the person concerned nor carried out in his or her interest, and which cause death to
or seriously endanger the health of such person or persons;
(xi) killing or wounding treacherously individuals belonging to the hostile nation or army;
(xii) declaring that no quarter will be given;
(xiii) destroying or seizing the enemy’s property unless such destruction or seizure be imperatively
demanded by the necessities of war;
(xiv) declaring abolished, suspended or inadmissible in a court of law the rights and actions of the
nationals of the hostile party;
(xv) compelling the nationals of the hostile party to take part in the operations of war directed against
their own country, even if they were in the belligerent’s service before the commencement of the
war;
(xvi) pillaging a town or place, even when taken by assault;
(xvii) employing poison or poisoned weapons;
(xviii) employing asphyxiating, poisonous or other gases, and all analogous liquids, materials or devices;
(xix) employing bullets which expand or flatten easily in the human body, such as bullets with a hard
envelope which does not entirely cover the core or is pierced with incisions;
(xx) employing weapons, projectiles and material and methods of warfare which are of a nature to cause
superfluous injury or unnecessary suffering or which are inherently indiscriminate in violation of
the international law of armed conflict, provided that such weapons, projectiles and material and
methods of warfare are the subject of a comprehensive prohibition and are included in an annex to
this Statute, by an amendment in accordance with the relevant provisions set forth in articles 121
and 123;
(xxi) committing outrages upon personal dignity, in particular humiliating and degrading treatment;
(xxii) committing rape, sexual slavery, enforced prostitution, forced pregnancy, as defined in article 7,
paragraph 2(f), enforced sterilization, or any other form of sexual violence also constituting a grave
breach of the Geneva Conventions;
(xxiii) utilizing the presence of a civilian or other protected person to render certain points, areas or
military forces immune from military operations;
(xxiv) intentionally directing attacks against buildings, material, medical units and transport, and
personnel using the distinctive emblems of the Geneva Conventions in conformity with
international law;
(xxv) intentionally using starvation of civilians as a method of warfare by depriving them of objects
indispensable to their survival, including wilfully impeding relief supplies as provided for under the
Geneva Conventions;
(xxvi) conscripting or enlisting children under the age of fifteen years into the national armed forces or
using them to participate actively in hostilities.

conscripting or enlisting children under the age of fifteen years into the national armed forces or
using them to participate actively in hostilities.

(c) In the case of an armed conflict not of an international character, serious violations of article 3 common
to the four Geneva Conventions of 12 August 1949, namely, any of the following acts committed against
persons taking no active part in the hostilities, including members of armed forces who have laid down
their arms and those placed hors de combat by sickness, wounds, detention or any other cause—
(i) violence to life and person, in particular murder of all kinds, mutilation, cruel treatment and
torture;
(ii) committing outrages upon personal dignity, in particular humiliating and degrading treatment;
71

kinds, mutilation, cruel treatment and
torture;
(ii) committing outrages upon personal dignity, in particular humiliating and degrading treatment;
71

International Crimes Act (Cap. 60) Kenya
(iii) taking of hostages;
(iv) the passing of sentences and the carrying out of executions without previous judgement
pronounced by a regularly constituted court, affording all judicial guarantees which are generally
recognized as indispensable. (d) paragraph 2(c) applies to armed conflicts not of an international character and thus does not apply to
situations of internal disturbances and tensions, such as riots, isolated and sporadic acts of violence or
other acts of a similar nature.

ot apply to
situations of internal disturbances and tensions, such as riots, isolated and sporadic acts of violence or
other acts of a similar nature.

(e) other serious violations of the laws and customs applicable in armed conflicts not of an international
character, within the established framework of international law, namely, any of the following acts—
(i) intentionally directing attacks against the civilian population as such or against individual civilians
not taking direct part in hostilities;
(ii) intentionally directing attacks against buildings, material, medical units and transport, and
personnel using the distinctive emblems of the Geneva Conventions in conformity with
international law;
(iii) intentionally directing attacks against personnel, installations, material, units or vehicles involved
in a humanitarian assistance or peacekeeping mission in accordance with the Charter of the United
Nations, as long as they are entitled to the protection given to civilians or civilian objects under the
international law of armed conflict;
(iv) intentionally directing attacks against buildings dedicated to religion, education, art, science or
charitable purposes, historic monuments, hospitals and places where the sick and wounded are
collected, provided they are not military objectives;
(v) pillaging a town or place, even when taken by assault;
(vi) committing rape, sexual slavery, enforced prostitution, forced pregnancy, as defined in article 7,
paragraph 2(f), enforced sterilization, and any other form of sexual violence also constituting a
serious violation of article 3 common to the four Geneva Conventions;
(vii) conscripting or enlisting children under the age of fifteen years into armed forces or groups or using
them to participate actively in hostilities;
(viii) ordering the displacement of the civilian population for reasons related to the conflict, unless the
security of the civilians involved or imperative military reasons so demand;
(ix) killing or wounding treacherously a combatant adversary;
(x) declaring that no quarter will be given;
(xi) subjecting persons who are in the power of another party to the conflict to physical mutilation or to
medical or scientific experiments of any kind which are neither justified by the medical, dental or
hospital treatment of the person concerned nor carried out in his or her interest, and which cause
death to or seriously endanger the health of such person or persons;
(xii) destroying or seizing the property of an adversary unless such destruction or seizure be
imperatively demanded by the necessities of the conflict.

ii) destroying or seizing the property of an adversary unless such destruction or seizure be
imperatively demanded by the necessities of the conflict.

(f) paragraph 2(e) applies to armed conflicts not of an international character and thus does not apply to
situations of internal disturbances and tensions, such as riots, isolated and sporadic acts of violence or
other acts of a similar nature. It applies to armed conflicts that take place in the territory of a State when
there is protracted armed conflict between governmental authorities and organized armed groups or
between such groups. 3. Nothing in paragraph 2(c) and (e) shall affect the responsibility of a Government to maintain or re-establish
law and order in the State or to defend the unity and territorial integrity of the State, by all legitimate means. 72

ment to maintain or re-establish
law and order in the State or to defend the unity and territorial integrity of the State, by all legitimate means. 72

International Crimes Act (Cap. 60) Kenya
Article 9 – Elements of Crimes
1. Elements of Crimes shall assist the Court in the interpretation and application of articles 6, 7 and 8. They shall
be adopted by a two-thirds majority of the members of the Assembly of States Parties. 2. Amendments to the Elements of Crimes may be proposed by—
(a) any State Party;
(b) the judges acting by an absolute majority;
(c) the Prosecutor. Such amendments shall be adopted by a two-thirds majority of the members of the Assembly of States Parties. 3. The Elements of Crimes and amendments thereto shall be consistent with this Statute. Article 10 – International Law not affected
Nothing in this Part shall be interpreted as limiting or prejudicing in any way existing or developing rules of
international law for purposes other than this Statute. Article 11 – Jurisdiction ratione temporis
1. The Court has jurisdiction only with respect to crimes committed after the entry into force of this Statute. 2.

11 – Jurisdiction ratione temporis
1. The Court has jurisdiction only with respect to crimes committed after the entry into force of this Statute. 2.

If a State becomes a Party to this Statute after its entry into force, the Court may exercise its jurisdiction only
with respect to crimes committed after the entry into force of this Statute for that State, unless that State has
made a declaration under article 12, paragraph 3. Article 12 – Preconditions to the exercise of jurisdiction
1. A State which becomes a Party to this Statute thereby accepts the jurisdiction of the Court with respect to the
crimes referred to in article 5. 2. In the case of article 13, paragraph (a) or (c), the Court may exercise its jurisdiction if one or more of the
following States are Parties to this Statute or have accepted the jurisdiction of the Court in accordance with
paragraph 3—
(a) the State on the territory of which the conduct in question occurred or, if the crime was committed on
board a vessel or aircraft, the State of registration of that vessel or aircraft;
(b) the State of which the person accused of the crime is a national. 3.

d a vessel or aircraft, the State of registration of that vessel or aircraft;
(b) the State of which the person accused of the crime is a national. 3.

If the acceptance of a State which is not a Party to this Statute is required under paragraph 2, that State may,
by declaration lodged with the Registrar, accept the exercise of jurisdiction by the Court with respect to the crime
in question. The accepting State shall cooperate with the Court without any delay or exception in accordance
with Part 9. Article 13 – Exercise of jurisdiction
The Court may exercise its jurisdiction with respect to a crime referred to in article 5 in accordance with the
provisions of this Statute if—
(a) a situation in which one or more of such crimes appears to have been committed is referred to the
Prosecutor by a State Party in accordance with article 14;
(b) a situation in which one or more of such crimes appears to have been committed is referred to the
Prosecutor by the Security Council acting under Chapter VII of the Charter of the United Nations; or
73

ears to have been committed is referred to the
Prosecutor by the Security Council acting under Chapter VII of the Charter of the United Nations; or
73

International Crimes Act (Cap. 60) Kenya
(c) the Prosecutor has initiated an investigation in respect of such a crime in accordance with article 15. Article 14 – Referral of a situation by a State Party
1. A State Party may refer to the Prosecutor a situation in which one or more crimes within the jurisdiction of the
Court appear to have been committed requesting the Prosecutor to investigate the situation for the purpose of
determining whether one or more specific persons should be charged with the commission of such crimes. 2. As far as possible, a referral shall specify the relevant circumstances and be accompanied by such supporting
documentation as is available to the State referring the situation. Article 15 – Prosecutor
1. The Prosecutor may initiate investigations proprio motu on the basis of information on crimes within the
jurisdiction of the Court. 2. The Prosecutor shall analyse the seriousness of the information received.

the basis of information on crimes within the
jurisdiction of the Court. 2. The Prosecutor shall analyse the seriousness of the information received.

For this purpose, he or she may
seek additional information from States, organs of the United Nations, intergovernmental or non-governmental
organizations, or other reliable sources that he or she deems appropriate, and may receive written or oral
testimony at the seat of the Court. 3. If the Prosecutor concludes that there is a reasonable basis to proceed with an investigation, he or she shall
submit to the Pre-Trial Chamber a request for authorization of an investigation, together with any supporting
material collected. Victims may make representations to the Pre-Trial Chamber, in accordance with the Rules of
Procedure and Evidence. 4. If the Pre-Trial Chamber, upon examination of the request and the supporting material, considers that there
is a reasonable basis to proceed with an investigation, and that the case appears to fall within the jurisdiction
of the Court, it shall authorize the commencement of the investigation, without prejudice to subsequent
determinations by the Court with regard to the jurisdiction and admissibility of a case. 5.

ment of the investigation, without prejudice to subsequent
determinations by the Court with regard to the jurisdiction and admissibility of a case. 5.

The refusal of the Pre-Trial Chamber to authorize the investigation shall not preclude the presentation of a
subsequent request by the Prosecutor based on new facts or evidence regarding the same situation. 6. If, after the preliminary examination referred to in paragraphs 1 and 2, the Prosecutor concludes that the
information provided does not constitute a reasonable basis for an investigation, he or she shall inform those
who provided the information. This shall not preclude the Prosecutor from considering further information
submitted to him or her regarding the same situation in the light of new facts or evidence. Article 16 – Deferral of investigation or prosecution
No investigation or prosecution may be commenced or proceeded with under this Statute for a period of 12
months after the Security Council, in a resolution adopted under Chapter VII of the Charter of the United
Nations, has requested the Court to that effect; that request may be renewed by the Council under the same
conditions. Article 17 – Issues of admissibility
1.

has requested the Court to that effect; that request may be renewed by the Council under the same
conditions. Article 17 – Issues of admissibility
1.

Having regard to paragraph 10 of the Preamble and article 1, the Court shall determine that a case is
inadmissible where—
(a) the case is being investigated or prosecuted by a State which has jurisdiction over it, unless the State is
unwilling or unable genuinely to carry out the investigation or prosecution;
(b) the case has been investigated by a State which has jurisdiction over it and the State has decided not to
prosecute the person concerned, unless the decision resulted from the unwillingness or inability of the
State genuinely to prosecute;
74

ecided not to
prosecute the person concerned, unless the decision resulted from the unwillingness or inability of the
State genuinely to prosecute;
74

International Crimes Act (Cap. 60) Kenya
(c) the person concerned has already been tried for conduct which is the subject of the complaint, and a trial
by the Court is not permitted under article 20, paragraph 3;
(d) the case is not of sufficient gravity to justify further action by the Court. 2. In order to determine unwillingness in a particular case, the Court shall consider, having regard to the
principles of due process recognized by international law, whether one or more of the following exist, as
applicable—
(a) the proceedings were or are being undertaken or the national decision was made for the purpose of
shielding the person concerned from criminal responsibility for crimes within the jurisdiction of the Court
referred to in article 5;
(b) there has been an unjustified delay in the proceedings which in the circumstances is inconsistent with an
intent to bring the person concerned to justice;
(c) the proceedings were not or are not being conducted independently or impartially, and they were or are
being conducted in a manner which, in the circumstances, is inconsistent with an intent to bring the
person concerned to justice. 3.

they were or are
being conducted in a manner which, in the circumstances, is inconsistent with an intent to bring the
person concerned to justice. 3.

In order to determine inability in a particular case, the Court shall consider whether, due to a total or
substantial collapse or unavailability of its national judicial system, the State is unable to obtain the accused or
the necessary evidence and testimony or otherwise unable to carry out its proceedings. Article 18 – Preliminary rulings regarding admissibility
1. When a situation has been referred to the Court pursuant to article 13(a) and the Prosecutor has determined
that there would be a reasonable basis to commence an investigation, or the Prosecutor initiates an investigation
pursuant to articles 13 (c) and 15, the Prosecutor shall notify all States Parties and those States which, taking
into account the information available, would normally exercise jurisdiction over the crimes concerned. The
Prosecutor may notify such States on a confidential basis and, where the Prosecutor believes it necessary to
protect persons, prevent destruction of evidence or prevent the absconding of persons, may limit the scope of the
information provided to States. 2.

o
protect persons, prevent destruction of evidence or prevent the absconding of persons, may limit the scope of the
information provided to States. 2.

Within one month of receipt of that notification, a State may inform the Court that it is investigating or has
investigated its nationals or others within its jurisdiction with respect to criminal acts which may constitute
crimes referred to in article 5 and which relate to the information provided in the notification to States. At the
request of that State, the Prosecutor shall defer to the State’s investigation of those persons unless the Pre-Trial
Chamber, on the application of the Prosecutor, decides to authorize the investigation. 3. The Prosecutor’s deferral to a State’s investigation shall be open to review by the Prosecutor six months after
the date of deferral or at any time when there has been a significant change of circumstances based on the State’s
unwillingness or inability genuinely to carry out the investigation. 4. The State concerned or the Prosecutor may appeal to the Appeals Chamber against a ruling of the Pre-Trial
Chamber, in accordance with article 82. The appeal may be heard on an expedited basis. 5.

eal to the Appeals Chamber against a ruling of the Pre-Trial
Chamber, in accordance with article 82. The appeal may be heard on an expedited basis. 5.

When the Prosecutor has deferred an investigation in accordance with paragraph 2, the Prosecutor may
request that the State concerned periodically inform the Prosecutor of the progress of its investigations and any
subsequent prosecutions. States Parties shall respond to such requests without undue delay. 6. Pending a ruling by the Pre-Trial Chamber, or at any time when the Prosecutor has deferred an investigation
under this article, the Prosecutor may, on an exceptional basis, seek authority from the Pre-Trial Chamber to
pursue necessary investigative steps for the purpose of preserving evidence where there is a unique opportunity
to obtain important evidence or there is a significant risk that such evidence may not be subsequently available. 7. A State which has challenged a ruling of the Pre-Trial Chamber under this article may challenge the
admissibility of a case under article 19 on the grounds of additional significant facts or significant change of
circumstances. 75

e may challenge the
admissibility of a case under article 19 on the grounds of additional significant facts or significant change of
circumstances. 75

International Crimes Act (Cap. 60) Kenya
Article 19 – Challenges to the jurisdiction of the Court or the admissibility of a case
1. The Court shall satisfy itself that it has jurisdiction in any case brought before it. The Court may, on its own
motion, determine the admissibility of a case in accordance with article 17. 2. Challenges to the admissibility of a case on the grounds referred to in article 17 or challenges to the
jurisdiction of the Court may be made by—
(a) an accused or a person for whom a warrant of arrest or a summons to appear has been issued under article
58;
(b) a State which has jurisdiction over a case, on the ground that it is investigating or prosecuting the case or
has investigated or prosecuted; or
(c) a State from which acceptance of jurisdiction is required under article 12. 3. The Prosecutor may seek a ruling from the Court regarding a question of jurisdiction or admissibility. In
proceedings with respect to jurisdiction or admissibility, those who have referred the situation under article 13,
as well as victims, may also submit observations to the Court. 4.

risdiction or admissibility, those who have referred the situation under article 13,
as well as victims, may also submit observations to the Court. 4.

The admissibility of a case or the jurisdiction of the Court may be challenged only once by any person or
State referred to in paragraph 2. The challenge shall take place prior to or at the commencement of the trial. In
exceptional circumstances, the Court may grant leave for a challenge to be brought more than once or at a time
later than the commencement of the trial. Challenges to the admissibility of a case, at the commencement of a
trial, or subsequently with the leave of the Court, may be based only on article 17, paragraph 1(c). 5. A State referred to in paragraph 2(b) and (c) shall make a challenge at the earliest opportunity. 6. Prior to the confirmation of the charges, challenges to the admissibility of a case or challenges to the
jurisdiction of the Court shall be referred to the Pre-Trial Chamber. After confirmation of the charges, they shall
be referred to the Trial Chamber. Decisions with respect to jurisdiction or admissibility may be appealed to the
Appeals Chamber in accordance with article 82. 7.

to the Trial Chamber. Decisions with respect to jurisdiction or admissibility may be appealed to the
Appeals Chamber in accordance with article 82. 7.

If a challenge is made by a State referred to in paragraph 2(b) or (c), the Prosecutor shall suspend the
investigation until such time as the Court makes a determination in accordance with article 17. 8. Pending a ruling by the Court, the Prosecutor may seek authority from the Court—
(a) to pursue necessary investigative steps of the kind referred to in article 18, paragraph 6;
(b) to take a statement or testimony from a witness or complete the collection and examination of evidence
which had begun prior to the making of the challenge; and
(c) in cooperation with the relevant States, to prevent the absconding of persons in respect of whom the
Prosecutor has already requested a warrant of arrest under article 58. 9. The making of a challenge shall not affect the validity of any act performed by the Prosecutor or any order or
warrant issued by the Court prior to the making of the challenge. 10. If the Court has decided that a case is inadmissible under article 17, the Prosecutor may submit a request for a
review of the decision when he or she is fully satisfied that new facts have arisen which negate the basis on which
the case had previously been found inadmissible under article 17.

or she is fully satisfied that new facts have arisen which negate the basis on which
the case had previously been found inadmissible under article 17.

11. If the Prosecutor, having regard to the matters referred to in article 17, defers an investigation, the Prosecutor
may request that the relevant State make available to the Prosecutor information on the proceedings. That
information shall, at the request of the State concerned, be confidential. If the Prosecutor thereafter decides to
proceed with an investigation, he or she shall notify the State to which deferral of the proceedings has taken
place. 76

secutor thereafter decides to
proceed with an investigation, he or she shall notify the State to which deferral of the proceedings has taken
place. 76

International Crimes Act (Cap. 60) Kenya
Article 20 – Ne bis in idem (double jeopardy prohibited)
1. Except as provided in this Statute, no person shall be tried before the Court with respect to conduct which
formed the basis of crimes for which the person has been convicted or acquitted by the Court. 2. No person shall be tried by another court for a crime referred to in article 5 for which that person has already
been convicted or acquitted by the Court. 3. No person who has been tried by another court for conduct also proscribed under article 6, 7 or 8 shall be tried
by the Court with respect to the same conduct unless the proceedings in the other court—
(a) were for the purpose of shielding the person concerned from criminal responsibility for crimes within the
jurisdiction of the Court; or
(b) otherwise were not conducted independently or impartially in accordance with the norms of due process
recognized by international law and were conducted in a manner which, in the circumstances, was
inconsistent with an intent to bring the person concerned to justice. Article 21 – Applicable law
1.

cted in a manner which, in the circumstances, was
inconsistent with an intent to bring the person concerned to justice. Article 21 – Applicable law
1.

The Court shall apply—
(a) in the first place, this Statute, Elements of Crimes and its Rules of Procedure and Evidence;
(b) in the second place, where appropriate, applicable treaties and the principles and rules of international
law, including the established principles of the international law of armed conflict;
(c) failing that, general principles of law derived by the Court from national laws of legal systems of the world
including, as appropriate, the national laws of States that would normally exercise jurisdiction over the
crime, provided that those principles are not inconsistent with this Statute and with international law and
internationally recognized norms and standards. 2. The Court may apply principles and rules of law as interpreted in its previous decisions. 3. The application and interpretation of law pursuant to this article must be consistent with internationally
recognized human rights, and be without any adverse distinction founded on grounds such as gender as defined
in article 7, paragraph 3, age, race, colour, language, religion or belief, political or other opinion, national, ethnic
or social origin, wealth, birth or other status.

raph 3, age, race, colour, language, religion or belief, political or other opinion, national, ethnic
or social origin, wealth, birth or other status.

Part 3 – GENERAL PRINCIPLES OF CRIMINAL LAW
Article 22 – Nullum crimen sine lege (no liability for conduct not a crime)
1. A person shall not be criminally responsible under this Statute unless the conduct in question constitutes, at
the time it takes place, a crime within the jurisdiction of the Court. 2. The definition of a crime shall be strictly construed and shall not be extended by analogy. In case of ambiguity,
the definition shall be interpreted in favour of the person being investigated, prosecuted or convicted. 3. This article shall not affect the characterization of any conduct as criminal under international law
independently of this Statute. Article 23 – Nulla poena sine lege (no punishment except under statute)
A person convicted by the Court may be punished only in accordance with this Statute. 77

– Nulla poena sine lege (no punishment except under statute)
A person convicted by the Court may be punished only in accordance with this Statute. 77

International Crimes Act (Cap. 60) Kenya
Article 24 – Non-retroactivity ratione personae
1. No person shall be criminally responsible under this Statute for conduct prior to the entry into force of the
Statute. 2. In the event of a change in the law applicable to a given case prior to a final judgement, the law more
favourable to the person being investigated, prosecuted or convicted shall apply. Article 25 – Individual criminal responsibility
1. The Court shall have jurisdiction over natural persons pursuant to this Statute. 2. A person who commits a crime within the jurisdiction of the Court shall be individually responsible and liable
for punishment in accordance with this Statute. 3.

o commits a crime within the jurisdiction of the Court shall be individually responsible and liable
for punishment in accordance with this Statute. 3.

In accordance with this Statute, a person shall be criminally responsible and liable for punishment for a crime
within the jurisdiction of the Court if that person—
(a) commits such a crime, whether as an individual, jointly with another or through another person,
regardless of whether that other person is criminally responsible;
(b) orders, solicits or induces the commission of such a crime which in fact occurs or is attempted;
(c) for the purpose of facilitating the commission of such a crime, aids, abets or otherwise assists in its
commission or its attempted commission, including providing the means for its commission;
(d) in any other way contributes to the commission or attempted commission of such a crime by a group of
persons acting with a common purpose.

ission;
(d) in any other way contributes to the commission or attempted commission of such a crime by a group of
persons acting with a common purpose.

Such contribution shall be intentional and shall either—
(i) be made with the aim of furthering the criminal activity or criminal purpose of the group, where
such activity or purpose involves the commission of a crime within the jurisdiction of the Court; or
(ii) be made in the knowledge of the intention of the group to commit the crime;
(e) in respect of the crime of genocide, directly and publicly incites others to commit genocide;
(f) attempts to commit such a crime by taking action that commences its execution by means of a substantial
step, but the crime does not occur because of circumstances independent of the person’s intentions. However, a person who abandons the effort to commit the crime or otherwise prevents the completion of the
crime shall not be liable for punishment under this Statute for the attempt to commit that crime if that person
completely and voluntarily gave up the criminal purpose. 4. No provision in this Statute relating to individual criminal responsibility shall affect the responsibility of
States under international law.

ose. 4. No provision in this Statute relating to individual criminal responsibility shall affect the responsibility of
States under international law.

Article 26 – Exclusion of jurisdiction over persons under eighteen
The Court shall have no jurisdiction over any person who was under the age of 18. at the time of the alleged
commission of a crime. Article 27 – Irrelevance of official capacity
1. This Statute shall apply equally to all persons without any distinction based on official capacity. In particular,
official capacity as a Head of State or Government, a member of a Government or parliament, an elected
representative or a government official shall in no case exempt a person from criminal responsibility under this
Statute, nor shall it, in and of itself, constitute a ground for reduction of sentence. 2. Immunities or special procedural rules which may attach to the official capacity of a person, whether under
national or international law, shall not bar the Court from exercising its jurisdiction over such a person. 78

ial capacity of a person, whether under
national or international law, shall not bar the Court from exercising its jurisdiction over such a person. 78

International Crimes Act (Cap. 60) Kenya
Article 28 – Responsibility of commanders and other superiors
In addition to other grounds of criminal responsibility under this Statute for crimes within the jurisdiction of the
Court—
(a) a military commander or person effectively acting as a military commander shall be criminally responsible
for crimes within the jurisdiction of the Court committed by forces under his or her effective command and
control, or effective authority and control as the case may be, as a result of his or her failure to exercise
control properly over such forces, where—
(i) that military commander or person either knew or, owing to the circumstances at the time, should
have known that the forces were committing or about to commit such crimes; and
(ii) that military commander or person failed to take all necessary and reasonable measures within
his or her power to prevent or repress their commission or to submit the matter to the competent
authorities for investigation and prosecution.

within
his or her power to prevent or repress their commission or to submit the matter to the competent
authorities for investigation and prosecution.

(b) with respect to superior and subordinate relationships not described in paragraph (a), a superior shall be
criminally responsible for crimes within the jurisdiction of the court committed by subordinates under his
or her effective authority and control, as a result of his or her failure to exercise control properly over such
subordinates where;
(i) the superior either knew, or consciously disregarded information which clearly indicated, that the
subordinates were committing or about to commit such crimes;
(ii) the crimes concerned activities that were within the effective responsibility and control of the
superior; and
(iii) the superior failed to take all necessary and reasonable measures within his or her power to prevent
or repress their commission or to submit the matter to the competent authorities for investigation
and prosecution. Article 29 – Non-applicability of statute of limitations
The crimes within the jurisdiction of the Court shall not be subject to any statute of limitations. Article 30 – Mental element
1.

tute of limitations
The crimes within the jurisdiction of the Court shall not be subject to any statute of limitations. Article 30 – Mental element
1.

Unless otherwise provided, a person shall be criminally responsible and liable for punishment for a crime
within the jurisdiction of the Court only if the material elements are committed with intent and knowledge. 2. For the purposes of this article, a person has intent where—
(a) in relation to conduct, that person means to engage in the conduct;
(b) in relation to a consequence, that person means to cause that consequence or is aware that it will occur in
the ordinary course of events. 3. For the purposes of this article, knowledge means awareness that a circumstance exists or a consequence will
occur in the ordinary course of events. Know and knowingly shall be construed accordingly. Article 31 – Grounds for excluding criminal responsibility
1. In addition to other grounds for excluding criminal responsibility provided for in this Statute, a person shall
not be criminally responsible if, at the time of that person’s conduct:
(a) the person suffers from a mental disease or defect that destroys that person’s capacity to appreciate the
unlawfulness or nature of his or her conduct, or capacity to control his or her conduct to conform to the
requirements of law;
79

ty to appreciate the
unlawfulness or nature of his or her conduct, or capacity to control his or her conduct to conform to the
requirements of law;
79

International Crimes Act (Cap. 60) Kenya
(b) the person is in a state of intoxication that destroys that person’s capacity to appreciate the unlawfulness
or nature of his or her conduct, or capacity to control his or her conduct to conform to the requirements
of law, unless the person has become voluntarily intoxicated under such circumstances that the person
knew, or disregarded the risk, that, as a result of the intoxication, he or she was likely to engage in conduct
constituting a crime within the jurisdiction of the Court;
(c) the person acts reasonably to defend himself or herself or another person or, in the case of war crimes,
property which is essential for the survival of the person or another person or property which is essential
for accomplishing a military mission, against an imminent and unlawful use of force in a manner
proportionate to the degree of danger to the person or the other person or property protected.

ainst an imminent and unlawful use of force in a manner
proportionate to the degree of danger to the person or the other person or property protected.

The fact
that the person was involved in a defensive operation conducted by forces shall not in itself constitute a
ground for excluding criminal responsibility under this subparagraph;
(d) the conduct which is alleged to constitute a crime within the jurisdiction of the Court has been caused
by duress resulting from a threat of imminent death or of continuing or imminent serious bodily harm
against that person or another person, and the person acts necessarily and reasonably to avoid this threat,
provided that the person does not intend to cause a greater harm than the one sought to be avoided. Such
a threat may either be—
(i) made by other persons; or
(ii) constituted by other circumstances beyond that person’s control. 2. The Court shall determine the applicability of the grounds for excluding criminal responsibility provided for in
this Statute to the case before it. 3. At trial, the Court may consider a ground for excluding criminal responsibility other than those referred to in
paragraph 1 where such a ground is derived from applicable law as set forth in article 21.

ing criminal responsibility other than those referred to in
paragraph 1 where such a ground is derived from applicable law as set forth in article 21.

The procedures relating
to the consideration of such a ground shall be provided for in the Rules of procedure and Evidence. Article 32 – Mistake of fact or mistake of law
1. A mistake of fact shall be a ground for excluding criminal responsibility only if it negates the mental element
required by the crime. 2. A mistake of law as to whether a particular type of conduct is a crime within the jurisdiction of the Court shall
not be a ground for excluding criminal responsibility. A mistake of law may, however, be a ground for excluding
criminal responsibility if it negates the mental element required by such a crime, or as provided for in article 33. Article 33 – Superior orders and prescription of law
1. The fact that a crime within the jurisdiction of the Court has been committed by a person pursuant to an
order of a Government or of a superior, whether military or civilian, shall not relieve that person of criminal
responsibility unless—
(a) the person was under a legal obligation to obey orders of the Government or the superior in question;
(b) the person did not know that the order was unlawful; and
(c) the order was not manifestly unlawful. 2.

the Government or the superior in question;
(b) the person did not know that the order was unlawful; and
(c) the order was not manifestly unlawful. 2.

For the purposes of this article, orders to commit genocide or crimes against humanity are manifestly
unlawful. 80

For the purposes of this article, orders to commit genocide or crimes against humanity are manifestly
unlawful. 80

International Crimes Act (Cap. 60) Kenya
Part 4 – COMPOSITION AND ADMINISTRATION OF THE COURT
Article 34 – Organs of the Court
The Court shall be composed of the following organs—
(a) the Presidency;
(b) an Appeals Division, a Trial Division and a Pre-Trial Division;
(c) the Office of the Prosecutor;
(d) the Registry. Article 35 – Service of judges
1. All judges shall be elected as full-time members of the Court and shall be available to serve on that basis from
the commencement of their terms of office. 2. The judges composing the Presidency shall serve on a full-time basis as soon as they are elected. 3. The Presidency may, on the basis of the workload of the Court and in consultation with its members, decide
from time to time to what extent the remaining judges shall be required to serve on a full-time basis. Any such
arrangement shall be without prejudice to the provisions of article 40. 4. The financial arrangements for judges not required to serve on a full-time basis shall be made in accordance
with article 49. Article 36 – Qualifications, nomination and election of judges
1. Subject to the provisions of paragraph 2, there shall be 18 judges of the Court. 2.

Article 36 – Qualifications, nomination and election of judges
1. Subject to the provisions of paragraph 2, there shall be 18 judges of the Court. 2.

(a) The Presidency, acting on behalf of the Court, may propose an increase in the number of judges specified
in paragraph 1, indicating the reasons why this is considered necessary and appropriate. The Registrar
shall promptly circulate any such proposal to all States Parties. (b) Any such proposal shall then be considered at a meeting of the Assembly of States Parties to be convened
in accordance with article 112 The proposal shall be considered adopted if approved at the meeting by a
vote of two thirds of the members of the Assembly of States Parties and shall enter into force at such time
as decided by the Assembly of States Parties.

e of two thirds of the members of the Assembly of States Parties and shall enter into force at such time
as decided by the Assembly of States Parties.

(c) (i) Once a proposal for an increase in the number of judges has been adopted under sub-paragraph (b),
the election of the additional judges shall take place at the next session of the Assembly of States
Parties in accordance with paragraphs 3 to 8, and article 37, paragraph 2;
(ii) Once a proposal for an increase in the number of judges has been adopted and brought into effect
under sub-paragraphs (b) and (c)(i), it shall be open to the Presidency at any time thereafter, if the
workload of the Court justifies it, to propose a reduction in the number of judges, provided that the
number of judges shall not be reduced below that specified in paragraph 1 The proposal shall be
dealt with in accordance with the procedure laid down in sub-paragraphs (a) and (b). In the event
that the proposal is adopted, the number of judges shall be progressively decreased as the terms of
office of serving judges expire, until the necessary number has been reached. 3. 81

number of judges shall be progressively decreased as the terms of
office of serving judges expire, until the necessary number has been reached. 3. 81

International Crimes Act (Cap. 60) Kenya
(a) The judges shall be chosen from among persons of high moral character, impartiality and integrity who
possess the qualifications required in their respective States for appointment to the highest judicial
offices. (b) Every candidate for election to the Court shall—
(i) have established competence in criminal law and procedure, and the necessary relevant experience,
whether as judge, prosecutor, advocate or in other similar capacity, in criminal proceedings; or
(ii) have established competence in relevant areas of international law such as international
humanitarian law and the law of human rights, and extensive experience in a professional legal
capacity which is of relevance to the judicial work of the Court;
(c) Every candidate for election to the Court shall have an excellent knowledge of and be fluent in at least one
of the working languages of the Court. 4.

Every candidate for election to the Court shall have an excellent knowledge of and be fluent in at least one
of the working languages of the Court. 4.

(a) Nominations of candidates for election to the Court may be made by any State Party to this Statute, and
shall be made either —
(i) by the procedure for the nomination of candidates for appointment to the highest judicial offices in
the State in question; or
(ii) by the procedure provided for the nomination of candidates for the International Court of Justice in
the Statute of that Court. Nominations shall be accompanied by a statement in the necessary detail specifying how the candidate
fulfils the requirements of paragraph 3. (b) Each State Party may put forward one candidate for any given election who need not necessarily be a
national of that State Party but shall in any case be a national of a State Party. (c) The Assembly of States Parties may decide to establish, if appropriate, an Advisory Committee on
nominations. In that event, the Committee’s composition and mandate shall be established by the
Assembly of States Parties. 5.

n Advisory Committee on
nominations. In that event, the Committee’s composition and mandate shall be established by the
Assembly of States Parties. 5.

For the purposes of the election, there shall be two lists of candidates—
List A containing the names of candidates with the qualifications specified in paragraph 3(b)(i); and List B
containing the names of candidates with the qualifications specified in paragraph 3(b)(ii). A candidate with sufficient qualifications for both lists may choose on which list to appear. At the first election
to the Court, at least nine judges shall be elected from list A and at least five judges from list B. Subsequent
elections shall be so organized as to maintain the equivalent proportion on the Court of judges qualified on the
two lists. 6. (a) The judges shall be elected by secret ballot at a meeting of the Assembly of States Parties convened for
that purpose under article 112. Subject to paragraph 7, the persons elected to the Court shall be the 18
candidates who obtain the highest number of votes and a two-thirds majority of the States Parties present
and voting. (b) In the event that a sufficient number of judges is not elected on the first ballot, successive ballots shall be
held in accordance with the procedures laid down in sub-paragraph (a) until the remaining places have
been filled. 7.

lot, successive ballots shall be
held in accordance with the procedures laid down in sub-paragraph (a) until the remaining places have
been filled. 7.

No two judges may be nationals of the same State. A person who, for the purposes of membership of the Court,
could be regarded as a national of more than one State shall be deemed to be a national of the State in which that
person ordinarily exercises civil and political rights. 8. 82

ional of more than one State shall be deemed to be a national of the State in which that
person ordinarily exercises civil and political rights. 8. 82

International Crimes Act (Cap. 60) Kenya
(a) The States Parties shall, in the selection of judges, take into account the need, within the membership of
the Court, for—
(i) the representation of the principal legal systems of the world;
(ii) equitable geographical representation; and
(iii) a fair representation of female and male judges. (b) States Parties shall also take into account the need to include judges with legal expertise on specific
issues, including, but not limited to, violence against women or children. 9. (a) Subject to sub-paragraph (b), judges shall hold office for a term of nine years and, subject to sub-
paragraph (c) and to article 37, paragraph 2, shall not be eligible for re-election. (b) At the first election, one-third of the judges elected shall be selected by lot to serve for a term of three
years; one-third of the judges elected shall be selected by lot to serve for a term of six years; and the
remainder shall serve for a term of nine years. (c) A judge who is selected to serve for a term of three years under sub- paragraph (b) shall be eligible for re-
election for a full term. 10.

years. (c) A judge who is selected to serve for a term of three years under sub- paragraph (b) shall be eligible for re-
election for a full term. 10.

Notwithstanding paragraph 9, a judge assigned to a Trial or Appeals Chamber in accordance with article 39
shall continue in office to complete any trial or appeal the hearing of which has already commenced before that
Chamber. Article 37 – Judicial vacancies
1. In the event of a vacancy, an election shall be held in accordance with article 36 to fill the vacancy. 2. A judge elected to fill a vacancy shall serve for the remainder of the predecessor’s term and, if that period is
three years or less, shall be eligible for re- election for a full term under article 36. Article 38 – The Presidency
1. The President and the First and Second Vice-Presidents shall be elected by an absolute majority of the judges. They shall each serve for a term of three years or until the end of their respective terms of office as judges,
whichever expires earlier. They shall be eligible for re-election once. 2. The First Vice-President shall act in place of the President in the event that the President is unavailable or
disqualified. The Second Vice-President shall act in place of the President in the event that both the President
and the First Vice- President are unavailable or disqualified. 3.

e-President shall act in place of the President in the event that both the President
and the First Vice- President are unavailable or disqualified. 3.

The President, together with the First and Second Vice-Presidents, shall constitute the Presidency, which shall
be responsible for—
(a) the proper administration of the Court, with the exception of the Office of the Prosecutor; and
(b) the other functions conferred upon it in accordance with this Statute. 4. In discharging its responsibility under paragraph 3(a), the Presidency shall coordinate with and seek the
concurrence of the Prosecutor on all matters of mutual concern. Article 39 – Chambers
1. As soon as possible after the election of the judges, the Court shall organize itself into the divisions specified
in article 34, paragraph (b). The Appeals Division shall be composed of the President and four other judges, the
Trial Division of not less than six judges and the Pre-Trial Division of not less than six judges. The assignment
of judges to divisions shall be based on the nature of the functions to be performed by each division and the
83

less than six judges. The assignment
of judges to divisions shall be based on the nature of the functions to be performed by each division and the
83

International Crimes Act (Cap. 60) Kenya
qualifications and experience of the judges elected to the Court, in such a way that each division shall contain an
appropriate combination of expertise in criminal law and procedure and in international law. The Trial and Pre-
Trial Divisions shall be composed predominantly of judges with criminal trial experience. 2. (a) The judicial functions of the Court shall be carried out in each division by Chambers. (b) (i) The Appeals Chamber shall be composed of all the judges of the Appeals Division. (ii) The functions of the Trial Chamber shall be carried out by three judges of the Trial Division. (iii) The functions of the Pre-Trial Chamber shall be carried out either by three judges of the Pre-
Trial Division or by a single judge of that division in accordance with this Statute and the Rules of
Procedure and Evidence. (c) Nothing in this paragraph shall preclude the simultaneous constitution of more than one Trial Chamber or
Pre-Trial Chamber when the efficient management of the Court’s workload so requires. 3.

he simultaneous constitution of more than one Trial Chamber or
Pre-Trial Chamber when the efficient management of the Court’s workload so requires. 3.

(a) Judges assigned to the Trial and Pre-Trial Divisions shall serve in those divisions for a period of three
years, and thereafter until the completion of any case the hearing of which has already commenced in the
division concerned. (b) Judges assigned to the Appeals Division shall serve in that division for their entire term of office. 4. Judges assigned to the Appeals Division shall serve only in that division. Nothing in this article shall, however,
preclude the temporary attachment of judges from the Trial Division to the Pre-Trial Division or vice versa, if
the Presidency considers that the efficient management of the Court’s workload so requires, provided that under
no circumstances shall a judge who has participated in the pre-trial phase of a case be eligible to sit on the Trial
Chamber hearing that case. Article 40 – Independence of the judges
1. The judges shall be independent in the performance of their functions. 2. Judges shall not engage in any activity which is likely to interfere with their judicial functions or to affect
confidence in their independence. 3.

. Judges shall not engage in any activity which is likely to interfere with their judicial functions or to affect
confidence in their independence. 3.

Judges required to serve on a full-time basis at the seat of the Court shall not engage in any other occupation
of a professional nature. 4. Any question regarding the application of paragraphs 2 and 3 shall be decided by an absolute majority of the
judges. Where any such question concerns an individual judge, that judge shall not take part in the decision. Article 41 – Excusing and disqualification of judges
1. The Presidency may, at the request of a judge, excuse that judge from the exercise of a function under this
Statute, in accordance with the Rules of Procedure and Evidence. 2. (a) A judge shall not participate in any case in which his or her impartiality might reasonably be doubted on
any ground. A judge shall be disqualified from a case in accordance with this paragraph if, inter alia, that
judge has previously been involved in any capacity in that case before the Court or in a related criminal
case at the national level involving the person being investigated or prosecuted. A judge shall also be
disqualified on such other grounds as may be provided for in the Rules of Procedure and Evidence.

ng investigated or prosecuted. A judge shall also be
disqualified on such other grounds as may be provided for in the Rules of Procedure and Evidence.

(b) The Prosecutor or the person being investigated or prosecuted may request the disqualification of a judge
under this paragraph. 84

(b) The Prosecutor or the person being investigated or prosecuted may request the disqualification of a judge
under this paragraph. 84

International Crimes Act (Cap. 60) Kenya
(c) Any question as to the disqualification of a judge shall be decided by an absolute majority of the judges. The challenged judge shall be entitled to present his or her comments on the matter, but shall not take
part in the decision. Article 42 – The Office of the Prosecutor
1. The Office of the Prosecutor shall act independently as a separate organ of the Court. It shall be responsible
for receiving referrals and any substantiated information on crimes within the jurisdiction of the Court, for
examining them and for conducting investigations and prosecutions before the Court. A member of the Office
shall not seek or act on instructions from any external source. 2. The Office shall be headed by the Prosecutor. The Prosecutor shall have full authority over the management
and administration of the Office, including the staff, facilities and other resources thereof. The Prosecutor shall
be assisted by one or more Deputy Prosecutors, who shall be entitled to carry out any of the acts required of the
Prosecutor under this Statute. The Prosecutor and the Deputy Prosecutors shall be of different nationalities.

arry out any of the acts required of the
Prosecutor under this Statute. The Prosecutor and the Deputy Prosecutors shall be of different nationalities.

They shall serve on a full-time basis. 3. The Prosecutor and the Deputy Prosecutors shall be persons of high moral character, be highly competent in
and have extensive practical experience in the prosecution or trial of criminal cases. They shall have an excellent
knowledge of and be fluent in at least one of the working languages of the Court. 4. The Prosecutor shall be elected by secret ballot by an absolute majority of the members of the Assembly of
States Parties. The Deputy Prosecutors shall be elected in the same way from a list of candidates provided by the
Prosecutor. The Prosecutor shall nominate three candidates for each position of Deputy Prosecutor to be filled. Unless a shorter term is decided upon at the time of their election, the Prosecutor and the Deputy Prosecutors
shall hold office for a term of nine years and shall not be eligible for re-election. 5. Neither the Prosecutor nor a Deputy Prosecutor shall engage in any activity which is likely to interfere with his
or her prosecutorial functions or to affect confidence in his or her independence. They shall not engage in any
other occupation of a professional nature. 6.

prosecutorial functions or to affect confidence in his or her independence. They shall not engage in any
other occupation of a professional nature. 6.

The Presidency may excuse the Prosecutor or a Deputy Prosecutor, at his or her request, from acting in a
particular case. 7. Neither the Prosecutor nor a Deputy Prosecutor shall participate in any matter in which their impartiality
might reasonably be doubted on any ground. They shall be disqualified from a case in accordance with this
paragraph if, inter alia, they have previously been involved in any capacity in that case before the Court or in a
related criminal case at the national level involving the person being investigated or prosecuted. 8. Any question as to the disqualification of the Prosecutor or a Deputy Prosecutor shall be decided by the
Appeals Chamber—
(a) the person being investigated or prosecuted may at any time request the disqualification of the Prosecutor
or a Deputy Prosecutor on the grounds set out in this article;
(b) the Prosecutor or the Deputy Prosecutor, as appropriate, shall be entitled to present his or her comments
on the matter. 9. The Prosecutor shall appoint advisers with legal expertise on specific issues, including, but not limited to,
sexual and gender violence and violence against children. Article 43 – The Registry
1.

al expertise on specific issues, including, but not limited to,
sexual and gender violence and violence against children. Article 43 – The Registry
1.

The Registry shall be responsible for the non-judicial aspects of the administration and servicing of the Court,
without prejudice to the functions and powers of the Prosecutor in accordance with article 42. 2. The Registry shall be headed by the Registrar, who shall be the principal administrative officer of the Court. The Registrar shall exercise his or her functions under the authority of the President of the Court. 85

principal administrative officer of the Court. The Registrar shall exercise his or her functions under the authority of the President of the Court. 85

International Crimes Act (Cap. 60) Kenya
3. The Registrar and the Deputy Registrar shall be persons of high moral character, be highly competent and have
an excellent knowledge of and be fluent in at least one of the working languages of the Court. 4. The judges shall elect the Registrar by an absolute majority by secret ballot, taking into account any
recommendation by the Assembly of States Parties. If the need arises and upon the recommendation of the
Registrar, the judges shall elect, in the same manner, a Deputy Registrar. 5. The Registrar shall hold office for a term of five years, shall be eligible for re-election once and shall serve on
a full-time basis. The Deputy Registrar shall hold office for a term of five years or such shorter term as may be
decided upon by an absolute majority of the judges, and may be elected on the basis that the Deputy Registrar
shall be called upon to serve as required. 6. The Registrar shall set up a Victims and Witnesses Unit within the Registry.

s that the Deputy Registrar
shall be called upon to serve as required. 6. The Registrar shall set up a Victims and Witnesses Unit within the Registry.

This Unit shall provide, in
consultation with the Office of the Prosecutor, protective measures and security arrangements, counselling and
other appropriate assistance for witnesses, victims who appear before the Court, and others who are at risk on
account of testimony given by such witnesses. The Unit shall include staff with expertise in trauma, including
trauma related to crimes of sexual violence. Article 44 – Staff
1. The Prosecutor and the Registrar shall appoint such qualified staff as may be required to their respective
offices. In the case of the Prosecutor, this shall include the appointment of investigators. 2. In the employment of staff, the Prosecutor and the Registrar shall ensure the highest standards of efficiency,
competency and integrity, and shall have regard, mutatis mutandis, to the criteria set forth in article 36,
paragraph 8. 3. The Registrar, with the agreement of the Presidency and the Prosecutor, shall propose Staff Regulations
which include the terms and conditions upon which the staff of the Court shall be appointed, remunerated and
dismissed. The Staff Regulations shall be approved by the Assembly of States Parties. 4.

ch the staff of the Court shall be appointed, remunerated and
dismissed. The Staff Regulations shall be approved by the Assembly of States Parties. 4.

The Court may, in exceptional circumstances, employ the expertise of gratis personnel offered by States
Parties, intergovernmental organizations or non-governmental organizations to assist with the work of any of
the organs of the Court. The Prosecutor may accept any such offer on behalf of the Office of the Prosecutor. Such
gratis personnel shall be employed in accordance with guidelines to be established by the Assembly of States
Parties. Article 45 – Solemn undertaking
Before taking up their respective duties under this Statute, the judges, the Prosecutor, the Deputy Prosecutors,
the Registrar and the Deputy Registrar shall each make a solemn undertaking in open court to exercise his or her
respective functions impartially and conscientiously. Article 46 – Removal from office
1.

ke a solemn undertaking in open court to exercise his or her
respective functions impartially and conscientiously. Article 46 – Removal from office
1.

A judge, the Prosecutor, a Deputy Prosecutor, the Registrar or the Deputy Registrar shall be removed from
office if a decision to this effect is made in accordance with paragraph 2, in cases where that person—
(a) is found to have committed serious misconduct or a serious breach of his or her duties under this Statute,
as provided for in the Rules of Procedure and Evidence; or
(b) is unable to exercise the functions required by this Statute. 2. A decision as to the removal from office of a judge, the Prosecutor or a Deputy Prosecutor under paragraph 1
shall be made by the Assembly of States Parties, by secret ballot—
(a) in the case of a judge, by a two-thirds majority of the States Parties upon a recommendation adopted by a
two-thirds majority of the other judges;
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in the case of a judge, by a two-thirds majority of the States Parties upon a recommendation adopted by a
two-thirds majority of the other judges;
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International Crimes Act (Cap. 60) Kenya
(b) in the case of the Prosecutor, by an absolute majority of the States Parties;
(c) in the case of a Deputy Prosecutor, by an absolute majority of the States Parties upon the recommendation
of the Prosecutor. 3. A decision as to the removal from office of the Registrar or Deputy Registrar shall be made by an absolute
majority of the judges. 4. A judge, Prosecutor, Deputy Prosecutor, Registrar or Deputy Registrar whose conduct or ability to exercise the
functions of the office as required by this Statute is challenged under this article shall have full opportunity to
present and receive evidence and to make submissions in accordance with the Rules of Procedure and Evidence. The person in question shall not otherwise participate in the consideration of the matter. Article 47 – Disciplinary measures
A judge, Prosecutor, Deputy Prosecutor, Registrar or Deputy Registrar who has committed misconduct of a
less serious nature than that set out in article 46, paragraph 1, shall be subject to disciplinary measures, in
accordance with the Rules of Procedure and Evidence. Article 48 – Privileges and immunities
1.

agraph 1, shall be subject to disciplinary measures, in
accordance with the Rules of Procedure and Evidence. 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.

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. Article 49 – Salaries, allowances and expenses
The judges, the Prosecutor, the Deputy Prosecutors, the Registrar and the Deputy Registrar shall receive such
salaries, allowances and expenses as may be decided upon by the Assembly of States Parties. These salaries and
allowances shall not be reduced during their terms of office. Article 50 – Official and working languages
1. The official languages of the Court shall be Arabic, Chinese, English, French, Russian and Spanish. The
judgements of the Court, as well as other decisions resolving fundamental issues before the Court, shall be
published in the official languages. The Presidency shall, in accordance with the criteria established by the Rules
87

sues before the Court, shall be
published in the official languages. The Presidency shall, in accordance with the criteria established by the Rules
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International Crimes Act (Cap. 60) Kenya
of Procedure and Evidence, determine which decisions may be considered as resolving fundamental issues for the
purposes of this paragraph. 2. The working languages of the Court shall be English and French. The Rules of Procedure and Evidence shall
determine the cases in which other official languages may be used as working languages. 3. At the request of any party to a proceeding or a State allowed to intervene in a proceeding, the Court shall
authorize a language other than English or French to be used by such a party or State, provided that the Court
considers such authorization to be adequately justified. Article 51 – Rules of Procedure and Evidence
1. The Rules of Procedure and Evidence shall enter into force upon adoption by a two-thirds majority of the
members of the Assembly of States Parties. 2. Amendments to the Rules of Procedure and Evidence may be proposed by—
(a) any State Party;
(b) the judges acting by an absolute majority; or
(c) the Prosecutor. Such amendments shall enter into force upon adoption by a two-thirds majority of the members of the Assembly
of States Parties. 3.

(c) the Prosecutor. Such amendments shall enter into force upon adoption by a two-thirds majority of the members of the Assembly
of States Parties. 3.

After the adoption of the Rules of Procedure and Evidence, in urgent cases where the Rules do not provide
for a specific situation before the Court, the judges may, by a two-thirds majority, draw up provisional Rules to
be applied until adopted, amended or rejected at the next ordinary or special session of the Assembly of States
Parties. 4. The Rules of Procedure and Evidence, amendments thereto and any provisional Rule shall be consistent
with this Statute. Amendments to the Rules of Procedure and Evidence as well as provisional Rules shall not be
applied retroactively to the detriment of the person who is being investigated or prosecuted or who has been
convicted. 5. In the event of conflict between the Statute and the Rules of Procedure and Evidence, the Statute shall prevail. Article 52 – Regulations of the Court
1. The judges shall, in accordance with this Statute and the Rules of Procedure and Evidence, adopt, by an
absolute majority, the Regulations of the Court necessary for its routine functioning. 2. The Prosecutor and the Registrar shall be consulted in the elaboration of the Regulations and any amendments
thereto. 3.

r its routine functioning. 2. The Prosecutor and the Registrar shall be consulted in the elaboration of the Regulations and any amendments
thereto. 3.

The Regulations and any amendments thereto shall take effect upon adoption unless otherwise decided by the
judges. Immediately upon adoption, they shall be circulated to States Parties for comments. If within six months
there are no objections from a majority of States Parties, they shall remain in force. Part 5 – INVESTIGATION AND PROSECUTION
Article 53 – Initiation of an investigation
1. The Prosecutor shall, having evaluated the information made available to him or her, initiate an investigation
unless he or she determines that there is no reasonable basis to proceed under this Statute. In deciding whether
to initiate an investigation, the Prosecutor shall consider whether—
(a) the information available to the Prosecutor provides a reasonable basis to believe that a crime within the
jurisdiction of the Court has been or is being committed;
88

vailable to the Prosecutor provides a reasonable basis to believe that a crime within the
jurisdiction of the Court has been or is being committed;
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International Crimes Act (Cap. 60) Kenya
(b) the case is or would be admissible under article 17; and
(c) taking into account the gravity of the crime and the interests of victims, there are nonetheless substantial
reasons to believe that an investigation would not serve the interests of justice. If the Prosecutor determines that there is no reasonable basis to proceed and his or her determination is
based solely on sub-paragraph (c) above, he or she shall inform the Pre-Trial Chamber. 2.

reasonable basis to proceed and his or her determination is
based solely on sub-paragraph (c) above, he or she shall inform the Pre-Trial Chamber. 2.

If, upon investigation, the Prosecutor concludes that there is not a sufficient basis for a prosecution because—
(a) there is not a sufficient legal or factual basis to seek a warrant or summons under article 58;
(b) the case is inadmissible under article 17; or
(c) a prosecution is not in the interests of justice, taking into account all the circumstances, including the
gravity of the crime, the interests of victims and the age or infirmity of the alleged perpetrator, and his or
her role in the alleged crime;
the Prosecutor shall inform the Pre-Trial Chamber and the State making a referral under article 14 or the Security
Council in a case under article 13, paragraph (b), of his or her conclusion and the reasons for the conclusion. 3. (a) At the request of the State making a referral under article 14 or the Security Council under article 13,
paragraph (b), the Pre-Trial Chamber may review a decision of the Prosecutor under paragraph 1 or 2 not
to proceed and may request the Prosecutor to reconsider that decision. (b) In addition, the Pre-Trial Chamber may, on its own initiative, review a decision of the Prosecutor not to
proceed if it is based solely on paragraph 1(c) or 2(c).

the Pre-Trial Chamber may, on its own initiative, review a decision of the Prosecutor not to
proceed if it is based solely on paragraph 1(c) or 2(c).

In such a case, the decision of the Prosecutor shall be
effective only if confirmed by the Pre-Trial Chamber. 4. The Prosecutor may, at any time, reconsider a decision whether to initiate an investigation or prosecution
based on new facts or information. Article 54 – Duties and powers of the Prosecutor with respect to investigations
1. The Prosecutor shall—
(a) in order to establish the truth, extend the investigation to cover all facts and evidence relevant to an
assessment of whether there is criminal responsibility under this Statute, and, in doing so, investigate
incriminating and exonerating circumstances equally;
(b) take appropriate measures to ensure the effective investigation and prosecution of crimes within the
jurisdiction of the Court, and in doing so, respect the interests and personal circumstances of victims and
witnesses, including age, gender as defined in article 7, paragraph 3, and health, and take into account the
nature of the crime, in particular where it involves sexual violence, gender violence or violence against
children; and
(c) fully respect the rights of persons arising under this Statute. 2.

it involves sexual violence, gender violence or violence against
children; and
(c) fully respect the rights of persons arising under this Statute. 2.

The Prosecutor may conduct investigations on the territory of a State—
(a) in accordance with the provisions of Part 9; or
(b) as authorized by the Pre-Trial Chamber under article 57, paragraph 3(d). 3. The Prosecutor may—
(a) collect and examine evidence;
(b) request the presence of and question persons being investigated, victims and witnesses;
(c) seek the cooperation of any State or intergovernmental organization or arrangement in accordance with
its respective competence and/or mandate;
89

(c) seek the cooperation of any State or intergovernmental organization or arrangement in accordance with
its respective competence and/or mandate;
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International Crimes Act (Cap. 60) Kenya
(d) enter into such arrangements or agreements, not inconsistent with this Statute, as may be necessary to
facilitate the cooperation of a State, intergovernmental organization or person;
(e) agree not to disclose, at any stage of the proceedings, documents or information that the Prosecutor
obtains on the condition of confidentiality and solely for the purpose of generating new evidence, unless
the provider of the information consents; and
(f) take necessary measures, or request that necessary measures be taken, to ensure the confidentiality of
information, the protection of any person or the preservation of evidence. Article 55 – Rights of persons during an investigation
1.

onfidentiality of
information, the protection of any person or the preservation of evidence. Article 55 – Rights of persons during an investigation
1.

In respect of an investigation under this Statute, a person—
(a) shall not be compelled to incriminate himself or herself or to confess guilt;
(b) shall not be subjected to any form of coercion, duress or threat, to torture or to any other form of cruel,
inhuman or degrading treatment or punishment;
(c) shall, if questioned in a language other than a language the person fully understands and speaks, have,
free of any cost, the assistance of a competent interpreter and such translations as are necessary to meet
the requirements of fairness; and
(d) shall not be subjected to arbitrary arrest or detention, and shall not be deprived of his or her liberty except
on such grounds and in accordance with such procedures as are established in this Statute. 2.

, and shall not be deprived of his or her liberty except
on such grounds and in accordance with such procedures as are established in this Statute. 2.

Where there are grounds to believe that a person has committed a crime within the jurisdiction of the Court
and that person is about to be questioned either by the Prosecutor, or by national authorities pursuant to a
request made under Part 9, that person shall also have the following rights of which he or she shall be informed
prior to being questioned—
(a) to be informed, prior to being questioned, that there are grounds to believe that he or she has committed a
crime within the jurisdiction of the Court;
(b) to remain silent, without such silence being a consideration in the determination of guilt or innocence;
(c) to have legal assistance of the person’s choosing, or, if the person does not have legal assistance, to have
legal assistance assigned to him or her, in any case where the interests of justice so require, and without
payment by the person in any such case if the person does not have sufficient means to pay for it; and
(d) to be questioned in the presence of counsel unless the person has voluntarily waived his or her right to
counsel. Article 56 – Role of the Pre-Trial Chamber in
relation to a unique investigative opportunity
1.

on has voluntarily waived his or her right to
counsel. Article 56 – Role of the Pre-Trial Chamber in
relation to a unique investigative opportunity
1.

(a) Where the Prosecutor considers an investigation to present a unique opportunity to take testimony or a
statement from a witness or to examine, collect or test evidence, which may not be available subsequently
for the purposes of a trial, the Prosecutor shall so inform the Pre-Trial Chamber. (b) In that case, the Pre-Trial Chamber may, upon request of the Prosecutor, take such measures as may be
necessary to ensure the efficiency and integrity of the proceedings and, in particular, to protect the rights
of the defence. (c) Unless the Pre-Trial Chamber orders otherwise, the Prosecutor shall provide the relevant information
to the person who has been arrested or appeared in response to a summons in connection with the
investigation referred to in sub-paragraph (a), in order that he or she may be heard on the matter. 2. The measures referred to in paragraph 1(b) may include—
90

on referred to in sub-paragraph (a), in order that he or she may be heard on the matter. 2. The measures referred to in paragraph 1(b) may include—
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International Crimes Act (Cap. 60) Kenya
(a) making recommendations or orders regarding procedures to be followed;
(b) directing that a record be made of the proceedings;
(c) appointing an expert to assist;
(d) authorizing counsel for a person who has been arrested, or appeared before the Court in response to a
summons, to participate, or where there has not yet been such an arrest or appearance or counsel has not
been designated, appointing another counsel to attend and represent the interests of the defence;
(e) naming one of its members or, if necessary, another available judge of the Pre-Trial or Trial Division to
observe and make recommendations or orders regarding the collection and preservation of evidence and
the questioning of persons;
(f) taking such other action as may be necessary to collect or preserve evidence. 3. (a) Where the Prosecutor has not sought measures pursuant to this article but the Pre-Trial Chamber
considers that such measures are required to preserve evidence that it deems would be essential for
the defence at trial, it shall consult with the Prosecutor as to whether there is good reason for the
Prosecutor’s failure to request the measures.

or
the defence at trial, it shall consult with the Prosecutor as to whether there is good reason for the
Prosecutor’s failure to request the measures.

If upon consultation, the Pre-Trial Chamber concludes that
the Prosecutor’s failure to request such measures is unjustified, the Pre-Trial Chamber may take such
measures on its own initiative. (b) A decision of the Pre-Trial Chamber to act on its own initiative under this paragraph may be appealed by
the Prosecutor. The appeal shall be heard on an expedited basis. 4. The admissibility of evidence preserved or collected for trial pursuant to this article, or the record thereof, shall
be governed at trial by article 69, and given such weight as determined by the Trial Chamber. Article 57 – Functions and powers of the Pre-Trial Chamber
1. Unless otherwise provided in this Statute, the Pre-Trial Chamber shall exercise its functions in accordance with
the provisions of this article. 2. (a) Orders or rulings of the Pre-Trial Chamber issued under articles 15, 18, 19, 54, paragraph 2, 61, paragraph
7, and 72 must be concurred in by a majority of its judges. (b) In all other cases, a single judge of the Pre-Trial Chamber may exercise the functions provided for in this
Statute, unless otherwise provided for in the Rules of Procedure and Evidence or by a majority of the Pre-
Trial Chamber. 3.

ions provided for in this
Statute, unless otherwise provided for in the Rules of Procedure and Evidence or by a majority of the Pre-
Trial Chamber. 3.

In addition to its other functions under this Statute, the Pre-Trial Chamber may—
(a) at the request of the Prosecutor, issue such orders and warrants as may be required for the purposes of an
investigation;
(b) upon the request of a person who has been arrested or has appeared pursuant to a summons under article
58, issue such orders, including measures such as those described in article 56, or seek such cooperation
pursuant to Part 9 as may be necessary to assist the person in the preparation of his or her defence;
(c) where necessary, provide for the protection and privacy of victims and witnesses, the preservation of
evidence, the protection of persons who have been arrested or appeared in response to a summons, and
the protection of national security information;
(d) authorize the Prosecutor to take specific investigative steps within the territory of a State Party without
having secured the cooperation of that State under Part 9 if, whenever possible having regard to the views
of the State concerned, the Pre-Trial Chamber has determined in that case that the State is clearly unable
91

ever possible having regard to the views
of the State concerned, the Pre-Trial Chamber has determined in that case that the State is clearly unable
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International Crimes Act (Cap. 60) Kenya
to execute a request for cooperation due to the unavailability of any authority or any component of its
judicial system competent to execute the request for cooperation under Part 9;
(e) where a warrant of arrest or a summons has been issued under article 58, and having due regard to the
strength of the evidence and the rights of the parties concerned, as provided for in this Statute and the
Rules of Procedure and Evidence, seek the cooperation of States pursuant to article 93, paragraph 1(k), to
take protective measures for the purpose of forfeiture, in particular for the ultimate benefit of victims. Article 58 – Issuance by the Pre-Trial Chamber
of a warrant of arrest or a summons to appear
1.

re, in particular for the ultimate benefit of victims. Article 58 – Issuance by the Pre-Trial Chamber
of a warrant of arrest or a summons to appear
1.

At any time after the initiation of an investigation, the Pre-Trial Chamber shall, on the application of the
Prosecutor, issue a warrant of arrest of a person if, having examined the application and the evidence or other
information submitted by the Prosecutor, it is satisfied that—
(a) there are reasonable grounds to believe that the person has committed a crime within the jurisdiction of
the Court; and
(b) the arrest of the person appears necessary—
(i) to ensure the person’s appearance at trial;
(ii) to ensure that the person does not obstruct or endanger the investigation or the court proceedings;
or
(iii) where applicable, to prevent the person from continuing with the commission of that crime or
a related crime which is within the jurisdiction of the Court and which arises out of the same
circumstances. 2.

with the commission of that crime or
a related crime which is within the jurisdiction of the Court and which arises out of the same
circumstances. 2.

The application of the Prosecutor shall contain—
(a) the name of the person and any other relevant identifying information;
(b) a specific reference to the crimes within the jurisdiction of the Court which the person is alleged to have
committed;
(c) a concise statement of the facts which are alleged to constitute those crimes;
(d) a summary of the evidence and any other information which establish reasonable grounds to believe that
the person committed those crimes; and
(e) the reason why the Prosecutor believes that the arrest of the person is necessary. 3. The warrant of arrest shall contain—
(a) the name of the person and any other relevant identifying information;
(b) a specific reference to the crimes within the jurisdiction of the Court for which the person’s arrest is
sought; and
(c) a concise statement of the facts which are alleged to constitute those crimes. 4. The warrant of arrest shall remain in effect until otherwise ordered by the Court. 5. On the basis of the warrant of arrest, the Court may request the provisional arrest or the arrest and surrender
of the person under Part 9. 6.

urt. 5. On the basis of the warrant of arrest, the Court may request the provisional arrest or the arrest and surrender
of the person under Part 9. 6.

The Prosecutor may request the Pre-Trial Chamber to amend the warrant of arrest by modifying or adding to
the crimes specified therein. The Pre-Trial Chamber shall so amend the warrant if it is satisfied that there are
reasonable grounds to believe that the person committed the modified or additional crimes. 7. As an alternative to seeking a warrant of arrest, the Prosecutor may submit an application requesting that the
Pre-Trial Chamber issue a summons for the person to appear. If the Pre-Trial Chamber is satisfied that there are
reasonable grounds to believe that the person committed the crime alleged and that a summons is sufficient to
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l Chamber is satisfied that there are
reasonable grounds to believe that the person committed the crime alleged and that a summons is sufficient to
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International Crimes Act (Cap. 60) Kenya
ensure the person’s appearance, it shall issue the summons, with or without conditions restricting liberty (other
than detention) if provided for by national law, for the person to appear. The summons shall contain—
(a) the name of the person and any other relevant identifying information;
(b) the specified date on which the person is to appear;
(c) a specific reference to the crimes within the jurisdiction of the Court which the person is alleged to have
committed; and
(d) a concise statement of the facts which are alleged to constitute the crime. The summons shall be served on
the person. Article 59 – Arrest proceedings in the custodial State
1. A State Party which has received a request for provisional arrest or for arrest and surrender shall immediately
take steps to arrest the person in question in accordance with its laws and the provisions of Part 9. 2.

or for arrest and surrender shall immediately
take steps to arrest the person in question in accordance with its laws and the provisions of Part 9. 2.

A person arrested shall be brought promptly before the competent judicial authority in the custodial State
which shall determine, in accordance with the law of that State, that—
(a) the warrant applies to that person;
(b) the person has been arrested in accordance with the proper process;
and
(c) the person’s rights have been respected. 3. The person arrested shall have the right to apply to the competent authority in the custodial State for interim
release pending surrender. 4. In reaching a decision on any such application, the competent authority in the custodial State shall consider
whether, given the gravity of the alleged crimes, there are urgent and exceptional circumstances to justify
interim release and whether necessary safeguards exist to ensure that the custodial State can fulfil its duty
to surrender the person to the Court. It shall not be open to the competent authority of the custodial State to
consider whether the warrant of arrest was properly issued in accordance with article 58, paragraph 1(a) and (b). 5. The Pre-Trial Chamber shall be notified of any request for interim release and shall make recommendations
to the competent authority in the custodial State.

e-Trial Chamber shall be notified of any request for interim release and shall make recommendations
to the competent authority in the custodial State.

The competent authority in the custodial State shall give full
consideration to such recommendations, including any recommendations on measures to prevent the escape of
the person, before rendering its decision. 6. If the person is granted interim release, the Pre-Trial Chamber may request periodic reports on the status of
the interim release. 7. Once ordered to be surrendered by the custodial State, the person shall be delivered to the Court as soon as
possible. Article 60 – Initial proceedings before the Court
1. Upon the surrender of the person to the Court, or the person’s appearance before the Court voluntarily or
pursuant to a summons, the Pre-Trial Chamber shall satisfy itself that the person has been informed of the
crimes which he or she is alleged to have committed, and of his or her rights under this Statute, including the
right to apply for interim release pending trial. 2. A person subject to a warrant of arrest may apply for interim release pending trial. If the Pre-Trial Chamber is
satisfied that the conditions set forth in article 58, paragraph 1, are met, the person shall continue to be detained.

al. If the Pre-Trial Chamber is
satisfied that the conditions set forth in article 58, paragraph 1, are met, the person shall continue to be detained.

If it is not so satisfied, the Pre-Trial Chamber shall release the person, with or without conditions. 93

If it is not so satisfied, the Pre-Trial Chamber shall release the person, with or without conditions. 93

International Crimes Act (Cap. 60) Kenya
3. The Pre-Trial Chamber shall periodically review its ruling on the release or detention of the person, and may
do so at any time on the request of the Prosecutor or the person. Upon such review, it may modify its ruling as to
detention, release or conditions of release, if it is satisfied that changed circumstances so require. 4. The Pre-Trial Chamber shall ensure that a person is not detained for an unreasonable period prior to trial due
to inexcusable delay by the Prosecutor. If such delay occurs, the Court shall consider releasing the person, with or
without conditions. 5. If necessary, the Pre-Trial Chamber may issue a warrant of arrest to secure the presence of a person who has
been released. Article 61 – Confirmation of the charges before trial
1. Subject to the provisions of paragraph 2, within a reasonable time after the person’s surrender or voluntary
appearance before the Court, the Pre-Trial Chamber shall hold a hearing to confirm the charges on which the
Prosecutor intends to seek trial. The hearing shall be held in the presence of the Prosecutor and the person
charged, as well as his or her counsel. 2.

rosecutor intends to seek trial. The hearing shall be held in the presence of the Prosecutor and the person
charged, as well as his or her counsel. 2.

The Pre-Trial Chamber may, upon request of the Prosecutor or on its own motion, hold a hearing in the
absence of the person charged to confirm the charges on which the Prosecutor intends to seek trial when the
person has—
(a) waived his or her right to be present; or
(b) fled or cannot be found and all reasonable steps have been taken to secure his or her appearance before
the Court and to inform the person of the charges and that a hearing to confirm those charges will be held. In that case, the person shall be represented by counsel where the Pre-Trial Chamber determines that it is
in the interests of justice. 3. Within a reasonable time before the hearing, the person shall—
(a) be provided with a copy of the document containing the charges on which the Prosecutor intends to bring
the person to trial; and
(b) be informed of the evidence on which the Prosecutor intends to rely at the hearing. The Pre-Trial Chamber may issue orders regarding the disclosure of information for the purposes of the hearing. 4. Before the hearing, the Prosecutor may continue the investigation and may amend or withdraw any charges.

formation for the purposes of the hearing. 4. Before the hearing, the Prosecutor may continue the investigation and may amend or withdraw any charges.

The person shall be given reasonable notice before the hearing of any amendment to or withdrawal of charges. In case of a withdrawal of charges, the Prosecutor shall notify the Pre-Trial Chamber of the reasons for the
withdrawal. 5. At the hearing, the Prosecutor shall support each charge with sufficient evidence to establish substantial
grounds to believe that the person committed the crime charged. The Prosecutor may rely on documentary or
summary evidence and need not call the witnesses expected to testify at the trial. 6. At the hearing, the person may—
(a) object to the charges;
(b) challenge the evidence presented by the Prosecutor; and
(c) present evidence. 7. The Pre-Trial Chamber shall, on the basis of the hearing, determine whether there is sufficient evidence to
establish substantial grounds to believe that the person committed each of the crimes charged. Based on its
determination, the Pre-Trial Chamber shall—
(a) confirm those charges in relation to which it has determined that there is sufficient evidence, and commit
the person to a Trial Chamber for trial on the charges as confirmed;
94

ation to which it has determined that there is sufficient evidence, and commit
the person to a Trial Chamber for trial on the charges as confirmed;
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International Crimes Act (Cap. 60) Kenya
(b) decline to confirm those charges in relation to which it has determined that there is insufficient evidence;
(c) adjourn the hearing and request the Prosecutor to consider—
(i) providing further evidence or conducting further investigation with respect to a particular charge;
or
(ii) amending a charge because the evidence submitted appears to establish a different crime within the
jurisdiction of the Court. 8. Where the Pre-Trial Chamber declines to confirm a charge, the Prosecutor shall not be precluded from
subsequently requesting its confirmation if the request is supported by additional evidence. 9. After the charges are confirmed and before the trial has begun, the Prosecutor may, with the permission of the
Pre-Trial Chamber and after notice to the accused, amend the charges. If the Prosecutor seeks to add additional
charges or to substitute more serious charges, a hearing under this article to confirm those charges must be held. After commencement of the trial, the Prosecutor may, with the permission of the Trial Chamber, withdraw the
charges. 10.

m those charges must be held. After commencement of the trial, the Prosecutor may, with the permission of the Trial Chamber, withdraw the
charges. 10.

Any warrant previously issued shall cease to have effect with respect to any charges which have not been
confirmed by the Pre-Trial Chamber or which have been withdrawn by the Prosecutor. 11. Once the charges have been confirmed in accordance with this article, the Presidency shall constitute a Trial
Chamber which, subject to paragraph 9 and to article 64, paragraph 4, shall be responsible for the conduct of
subsequent proceedings and may exercise any function of the Pre-Trial Chamber that is relevant and capable of
application in those proceedings. Part 6 – THE TRIAL
Article 62 – Place of trial
Unless otherwise decided, the place of the trial shall be the seat of the Court. Article 63 – Trial in the presence of the accused
1. The accused shall be present during the trial. 2. If the accused, being present before the Court, continues to disrupt the trial, the Trial Chamber may remove
the accused and shall make provision for him or her to observe the trial and instruct counsel from outside the
courtroom, through the use of communications technology, if required.

vision for him or her to observe the trial and instruct counsel from outside the
courtroom, through the use of communications technology, if required.

Such measures shall be taken only in
exceptional circumstances after other reasonable alternatives have proved inadequate, and only for such duration
as is strictly required. Article 64 – Functions and powers of the Trial Chamber
1. The functions and powers of the Trial Chamber set out in this article shall be exercised in accordance with this
Statute and the Rules of Procedure and Evidence. 2. The Trial Chamber shall ensure that a trial is fair and expeditious and is conducted with full respect for the
rights of the accused and due regard for the protection of victims and witnesses. 3. Upon assignment of a case for trial in accordance with this Statute, the Trial Chamber assigned to deal with the
case shall—
(a) confer with the parties and adopt such procedures as are necessary to facilitate the fair and expeditious
conduct of the proceedings;
(b) determine the language or languages to be used at trial; and
95

s are necessary to facilitate the fair and expeditious
conduct of the proceedings;
(b) determine the language or languages to be used at trial; and
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International Crimes Act (Cap. 60) Kenya
(c) subject to any other relevant provisions of this Statute, provide for disclosure of documents or information
not previously disclosed, sufficiently in advance of the commencement of the trial to enable adequate
preparation for trial. 4. The Trial Chamber may, if necessary for its effective and fair functioning, refer preliminary issues to the Pre-
Trial Chamber or, if necessary, to another available judge of the Pre-Trial Division. 5. Upon notice to the parties, the Trial Chamber may, as appropriate, direct that there be joinder or severance in
respect of charges against more than one accused. 6.

the parties, the Trial Chamber may, as appropriate, direct that there be joinder or severance in
respect of charges against more than one accused. 6.

In performing its functions prior to trial or during the course of a trial, the Trial Chamber may, as necessary—
(a) exercise any functions of the Pre-Trial Chamber referred to in article 61, paragraph 11;
(b) require the attendance and testimony of witnesses and production of documents and other evidence by
obtaining, if necessary, the assistance of States as provided in this Statute;
(c) provide for the protection of confidential information;
(d) order the production of evidence in addition to that already collected prior to the trial or presented during
the trial by the parties;
(e) provide for the protection of the accused, witnesses and victims; and
(f) rule on any other relevant matters. 7. The trial shall be held in public. The Trial Chamber may, however, determine that special circumstances require
that certain proceedings be in closed session for the purposes set forth in article 68, or to protect confidential or
sensitive information to be given in evidence. 8. (a) At the commencement of the trial, the Trial Chamber shall have read to the accused the charges previously
confirmed by the Pre-Trial Chamber.

. 8. (a) At the commencement of the trial, the Trial Chamber shall have read to the accused the charges previously
confirmed by the Pre-Trial Chamber.

The Trial Chamber shall satisfy itself that the accused understands the nature of the charges. It shall afford him
or her the opportunity to make an admission of guilt in accordance with article 65 or to plead not guilty. (b) At the trial, the presiding judge may give directions for the conduct of proceedings, including to ensure
that they are conducted in a fair and impartial manner. Subject to any directions of the presiding judge,
the parties may submit evidence in accordance with the provisions of this Statute. 9. The Trial Chamber shall have, inter alia, the power on application of a party or on its own motion to—
(a) rule on the admissibility or relevance of evidence; and
(b) take all necessary steps to maintain order in the course of a hearing. 10. The Trial Chamber shall ensure that a complete record of the trial, which accurately reflects the proceedings,
is made and that it is maintained and preserved by the Registrar. Article 65 – Proceedings on an admission of guilt
1.

ately reflects the proceedings,
is made and that it is maintained and preserved by the Registrar. Article 65 – Proceedings on an admission of guilt
1.

Where the accused makes an admission of guilt pursuant to article 64, paragraph 8(a), the Trial Chamber shall
determine whether—
(a) the accused understands the nature and consequences of the admission of guilt;
(b) the admission is voluntarily made by the accused after sufficient consultation with defence counsel; and
(c) the admission of guilt is supported by the facts of the case that are contained in—
(i) the charges brought by the Prosecutor and admitted by the accused;
96

ission of guilt is supported by the facts of the case that are contained in—
(i) the charges brought by the Prosecutor and admitted by the accused;
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International Crimes Act (Cap. 60) Kenya
(ii) any materials presented by the Prosecutor which supplement the charges and which the accused
accepts; and
(iii) any other evidence, such as the testimony of witnesses, presented by the Prosecutor or the accused. 2. Where the Trial Chamber is satisfied that the matters referred to in paragraph 1 are established, it shall
consider the admission of guilt, together with any additional evidence presented, as establishing all the essential
facts that are required to prove the crime to which the admission of guilt relates, and may convict the accused of
that crime. 3. Where the Trial Chamber is not satisfied that the matters referred to in paragraph 1 are established, it shall
consider the admission of guilt as not having been made, in which case it shall order that the trial be continued
under the ordinary trial procedures provided by this Statute and may remit the case to another Trial Chamber. 4.

all order that the trial be continued
under the ordinary trial procedures provided by this Statute and may remit the case to another Trial Chamber. 4.

Where the Trial Chamber is of the opinion that a more complete presentation of the facts of the case is
required in the interests of justice, in particular the interests of the victims, the Trial Chamber may—
(a) request the Prosecutor to present additional evidence, including the testimony of witnesses; or
(b) order that the trial be continued under the ordinary trial procedures provided by this Statute, in which
case it shall consider the admission of guilt as not having been made and may remit the case to another
Trial Chamber. 5. Any discussions between the Prosecutor and the defence regarding modification of the charges, the admission
of guilt or the penalty to be imposed shall not be binding on the Court. Article 66 – Presumption of innocence
1. Everyone shall be presumed innocent until proved guilty before the Court in accordance with the applicable
law. 2. The onus is on the Prosecutor to prove the guilt of the accused. 3. In order to convict the accused, the Court must be convinced of the guilt of the accused beyond reasonable
doubt. Article 67 – Rights of the accused
1.

n order to convict the accused, the Court must be convinced of the guilt of the accused beyond reasonable
doubt. Article 67 – Rights of the accused
1.

In the determination of any charge, the accused shall be entitled to a public hearing, having regard to the
provisions of this Statute, to a fair hearing conducted impartially, and to the following minimum guarantees, in
full equality—
(a) to be informed promptly and in detail of the nature, cause and content of the charge, in a language which
the accused fully understands and speaks;
(b) to have adequate time and facilities for the preparation of the defence and to communicate freely with
counsel of the accused’s choosing in confidence;
(c) to be tried without undue delay;
(d) subject to article 63, paragraph 2, to be present at the trial, to conduct the defence in person or through
legal assistance of the accused’s choosing, to be informed, if the accused does not have legal assistance, of
this right and to have legal assistance assigned by the Court in any case where the interests of justice so
require, and without payment if the accused lacks sufficient means to pay for it;
(e) to examine, or have examined, the witnesses against him or her and to obtain the attendance and
examination of witnesses on his or her behalf under the same conditions as witnesses against him or her.

t him or her and to obtain the attendance and
examination of witnesses on his or her behalf under the same conditions as witnesses against him or her.

The accused shall also be entitled to raise defences and to present other evidence admissible under this
Statute;
97

The accused shall also be entitled to raise defences and to present other evidence admissible under this
Statute;
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International Crimes Act (Cap. 60) Kenya
(f) to have, free of any cost, the assistance of a competent interpreter and such translations as are necessary
to meet the requirements of fairness, if any of the proceedings of or documents presented to the Court are
not in a language which the accused fully understands and speaks;
(g) not to be compelled to testify or to confess guilt and to remain silent, without such silence being a
consideration in the determination of guilt or innocence;
(h) to make an unsworn oral or written statement in his or her defence;
and
(i) not to have imposed on him or her any reversal of the burden of proof or any onus of rebuttal. 2. In addition to any other disclosure provided for in this Statute, the Prosecutor shall, as soon as practicable,
disclose to the defence evidence in the Prosecutor’s possession or control which he or she believes shows or tends
to show the innocence of the accused, or to mitigate the guilt of the accused, or which may affect the credibility
of prosecution evidence. In case of doubt as to the application of this paragraph, the Court shall decide.

ccused, or which may affect the credibility
of prosecution evidence. In case of doubt as to the application of this paragraph, the Court shall decide.

Article 68 – Protection of the victims and witnesses
and their participation in the proceedings
1. The Court shall take appropriate measures to protect the safety, physical and psychological well-being, dignity
and privacy of victims and witnesses. In so doing, the Court shall have regard to all relevant factors, including
age, gender as defined in article 7, paragraph 3, and health, and the nature of the crime, in particular, but not
limited to, where the crime involves sexual or gender violence or violence against children. The Prosecutor shall
take such measures particularly during the investigation and prosecution of such crimes. These measures shall
not be prejudicial to or inconsistent with the rights of the accused and a fair and impartial trial. 2. As an exception to the principle of public hearings provided for in article 67, the Chambers of the Court may,
to protect victims and witnesses or an accused, conduct any part of the proceedings in camera or allow the
presentation of evidence by electronic or other special means.

and witnesses or an accused, conduct any part of the proceedings in camera or allow the
presentation of evidence by electronic or other special means.

In particular, such measures shall be implemented
in the case of a victim of sexual violence or a child who is a victim or a witness, unless otherwise ordered by the
Court, having regard to all the circumstances, particularly the views of the victim or witness. 3. Where the personal interests of the victims are affected, the Court shall permit their views and concerns to
be presented and considered at stages of the proceedings determined to be appropriate by the Court and in a
manner which is not prejudicial to or inconsistent with the rights of the accused and a fair and impartial trial. Such views and concerns may be presented by the legal representatives of the victims where the Court considers
it appropriate, in accordance with the Rules of Procedure and Evidence. 4. The Victims and Witnesses Unit may advise the Prosecutor and the Court on appropriate protective measures,
security arrangements, counselling and assistance as referred to in article 43, paragraph 6. 5.

utor and the Court on appropriate protective measures,
security arrangements, counselling and assistance as referred to in article 43, paragraph 6. 5.

Where the disclosure of evidence or information pursuant to this Statute may lead to the grave endangerment
of the security of a witness or his or her family, the Prosecutor may, for the purposes of any proceedings
conducted prior to the commencement of the trial, withhold such evidence or information and instead submit a
summary thereof. Such measures shall be exercised in a manner which is not prejudicial to or inconsistent with
the rights of the accused and a fair and impartial trial. 6. A State may make an application for necessary measures to be taken in respect of the protection of its servants
or agents and the protection of confidential or sensitive information. Article 69 – Evidence
1. Before testifying, each witness shall, in accordance with the Rules of Procedure and Evidence, give an
undertaking as to the truthfulness of the evidence to be given by that witness. 2. The testimony of a witness at trial shall be given in person, except to the extent provided by the measures
set forth in article 68 or in the Rules of Procedure and Evidence. The Court may also permit the giving of viva
98

the extent provided by the measures
set forth in article 68 or in the Rules of Procedure and Evidence. The Court may also permit the giving of viva
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International Crimes Act (Cap. 60) Kenya
voce (oral) or recorded testimony of a witness by means of video or audio technology, as well as the introduction
of documents or written transcripts, subject to this Statute and in accordance with the Rules of Procedure and
Evidence. These measures shall not be prejudicial to or inconsistent with the rights of the accused. 3. The parties may submit evidence relevant to the case, in accordance with article 64 The Court shall have the
authority to request the submission of all evidence that it considers necessary for the determination of the truth. 4. The Court may rule on the relevance or admissibility of any evidence, taking into account, inter alia, the
probative value of the evidence and any prejudice that such evidence may cause to a fair trial or to a fair
evaluation of the testimony of a witness, in accordance with the Rules of Procedure and Evidence. 5. The Court shall respect and observe privileges on confidentiality as provided for in the Rules of Procedure and
Evidence. 6. The Court shall not require proof of facts of common knowledge but may take judicial notice of them. 7.

for in the Rules of Procedure and
Evidence. 6. The Court shall not require proof of facts of common knowledge but may take judicial notice of them. 7.

Evidence obtained by means of a violation of this Statute or internationally recognized human rights shall not
be admissible if—
(a) the violation casts substantial doubt on the reliability of the evidence;
or
(b) the admission of the evidence would be antithetical to and would seriously damage the integrity of the
proceedings. 8. When deciding on the relevance or admissibility of evidence collected by a State, the Court shall not rule on
the application of the State’s national law. Article 70 – Offences against the administration of justice
1.

ed by a State, the Court shall not rule on
the application of the State’s national law. Article 70 – Offences against the administration of justice
1.

The Court shall have jurisdiction over the following offences against its administration of justice when
committed intentionally—
(a) giving false testimony when under an obligation pursuant to article 69, paragraph 1, to tell the truth;
(b) presenting evidence that the party knows is false or forged;
(c) corruptly influencing a witness, obstructing or interfering with the attendance or testimony of a witness,
retaliating against a witness for giving testimony or destroying, tampering with or interfering with the
collection of evidence;
(d) impeding, intimidating or corruptly influencing an official of the Court for the purpose of forcing or
persuading the official not to perform, or to perform improperly, his or her duties;
(e) retaliating against an official of the Court on account of duties performed by that or another official;
(f) soliciting or accepting a bribe as an official of the Court in connection with his or her official duties. 2. The principles and procedures governing the Court’s exercise of jurisdiction over offences under this article
shall be those provided for in the Rules of Procedure and Evidence.

es governing the Court’s exercise of jurisdiction over offences under this article
shall be those provided for in the Rules of Procedure and Evidence.

The conditions for providing international
cooperation to the Court with respect to its proceedings under this article shall be governed by the domestic laws
of the requested State. 3. In the event of conviction, the Court may impose a term of imprisonment not exceeding five years, or a fine in
accordance with the Rules of Procedure and Evidence, or both. 4. (a) Each State Party shall extend its criminal laws penalizing offences against the integrity of its own
investigative or judicial process to offences against the administration of justice referred to in this article,
committed on its territory, or by one of its nationals. 99

cial process to offences against the administration of justice referred to in this article,
committed on its territory, or by one of its nationals. 99

International Crimes Act (Cap. 60) Kenya
(b) Upon request by the Court, whenever it deems it proper, the State Party shall submit the case to its
competent authorities for the purpose of prosecution. Those authorities shall treat such cases with
diligence and devote sufficient resources to enable them to be conducted effectively. Article 71 – Sanctions for misconduct before the Court
1. The Court may sanction persons present before it who commit misconduct, including disruption of its
proceedings or deliberate refusal to comply with its directions, by administrative measures other than
imprisonment, such as temporary or permanent removal from the courtroom, a fine or other similar measures
provided for in the Rules of Procedure and Evidence. 2. The procedures governing the imposition of the measures set forth in paragraph 1 shall be those provided for
in the Rules of Procedure and Evidence. Article 72 – Protection of national security information
1. This article applies in any case where the disclosure of the information or documents of a State would, in
the opinion of that State, prejudice its national security interests.

y case where the disclosure of the information or documents of a State would, in
the opinion of that State, prejudice its national security interests.

Such cases include those falling within the
scope of article 56, paragraphs 2 and 3, article 61, paragraph 3, article 64, paragraph 3, article 67, paragraph 2,
article 68, paragraph 6, article 87, paragraph 6 and article 93, as well as cases arising at any other stage of the
proceedings where such disclosure may be at issue. 2. This article shall also apply when a person who has been requested to give information or evidence has refused
to do so or has referred the matter to the State on the ground that disclosure would prejudice the national
security interests of a State and the State concerned confirms that it is of the opinion that disclosure would
prejudice its national security interests. 3. Nothing in this article shall prejudice the requirements of confidentiality applicable under article 54,
paragraph 3(e) and (f), or the application of article 73. 4.

article shall prejudice the requirements of confidentiality applicable under article 54,
paragraph 3(e) and (f), or the application of article 73. 4.

If a State learns that information or documents of the State are being, or are likely to be, disclosed at any stage
of the proceedings, and it is of the opinion that disclosure would prejudice its national security interests, that
State shall have the right to intervene in order to obtain resolution of the issue in accordance with this article. 5. If, in the opinion of a State, disclosure of information would prejudice its national security interests, all
reasonable steps will be taken by the State, acting in conjunction with the Prosecutor, the defence or the Pre-
Trial Chamber or Trial Chamber, as the case may be, to seek to resolve the matter by cooperative means.

n with the Prosecutor, the defence or the Pre-
Trial Chamber or Trial Chamber, as the case may be, to seek to resolve the matter by cooperative means.

Such steps may include—
(a) modification or clarification of the request;
(b) a determination by the Court regarding the relevance of the information or evidence sought, or a
determination as to whether the evidence, though relevant, could be or has been obtained from a source
other than the requested State;
(c) obtaining the information or evidence from a different source or in a different form; or
(d) agreement on conditions under which the assistance could be provided including, among other things,
providing summaries or redactions, limitations on disclosure, use of in camera or ex parte proceedings, or
other protective measures permissible under the Statute and the Rules of Procedure and Evidence. 6.

sure, use of in camera or ex parte proceedings, or
other protective measures permissible under the Statute and the Rules of Procedure and Evidence. 6.

Once all reasonable steps have been taken to resolve the matter through cooperative means, and if the State
considers that there are no means or conditions under which the information or documents could be provided or
disclosed without prejudice to its national security interests, it shall so notify the Prosecutor or the Court of the
specific reasons for its decision, unless a specific description of the reasons would itself necessarily result in such
prejudice to the State’s national security interests. 7. Thereafter, if the Court determines that the evidence is relevant and necessary for the establishment of the
guilt or innocence of the accused, the Court may undertake the following actions—
100

evidence is relevant and necessary for the establishment of the
guilt or innocence of the accused, the Court may undertake the following actions—
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International Crimes Act (Cap.

International Crimes Act (Cap.

60) Kenya
(a) where disclosure of the information or document is sought pursuant to a request for cooperation under
Part 9 or the circumstances described in paragraph 2, and the State has invoked the ground for refusal
referred to in article 93, paragraph 4—
(i) the Court may, before making any conclusion referred to in sub- paragraph 7(a)(ii), request further
consultations for the purpose of considering the State’s representations, which may include, as
appropriate, hearings in camera and ex parte;
(ii) if the Court concludes that, by invoking the ground for refusal under article 93, paragraph 4, in the
circumstances of the case, the requested State is not acting in accordance with its obligations under
this Statute, the Court may refer the matter in accordance with article 87, paragraph 7, specifying
the reasons for its conclusion; and
(iii) the Court may make such inference in the trial of the accused as to the existence or non-existence
of a fact, as may be appropriate in the circumstances; or
(b) in all other circumstances—
(i) order disclosure; or
(ii) to the extent it does not order disclosure, make such inference in the trial of the accused as to the
existence or non-existence of a fact, as may be appropriate in the circumstances.

isclosure, make such inference in the trial of the accused as to the
existence or non-existence of a fact, as may be appropriate in the circumstances.

Article 73 – Third-party information or documents
If a State Party is requested by the Court to provide a document or information in its custody, possession or
control, which was disclosed to it in confidence by a State, intergovernmental organization or international
organization, it shall seek the consent of the originator to disclose that document or information. If the
originator is a State Party, it shall either consent to disclosure of the information or document or undertake to
resolve the issue of disclosure with the Court, subject to the provisions of article 72. If the originator is not a
State Party and refuses to consent to disclosure, the requested State shall inform the Court that it is unable to
provide the document or information because of a pre-existing obligation of confidentiality to the originator. Article 74 – Requirements for the decision
1. All the judges of the Trial Chamber shall be present at each stage of the trial and throughout their
deliberations.

– Requirements for the decision
1. All the judges of the Trial Chamber shall be present at each stage of the trial and throughout their
deliberations.

The Presidency may, on a case-by-case basis, designate, as available, one or more alternate judges
to be present at each stage of the trial and to replace a member of the Trial Chamber if that member is unable to
continue attending. 2. The Trial Chamber’s decision shall be based on its evaluation of the evidence and the entire proceedings. The decision shall not exceed the facts and circumstances described in the charges and any amendments to the
charges. The Court may base its decision only on evidence submitted and discussed before it at the trial. 3. The judges shall attempt to achieve unanimity in their decision, failing which the decision shall be taken by a
majority of the judges. 4. The deliberations of the Trial Chamber shall remain secret. 5. The decision shall be in writing and shall contain a full and reasoned statement of the Trial Chamber’s findings
on the evidence and conclusions. The Trial Chamber shall issue one decision. When there is no unanimity, the
Trial Chamber’s decision shall contain the views of the majority and the minority. The decision or a summary
thereof shall be delivered in open court. Article 75 – Reparations to victims
1.

the views of the majority and the minority. The decision or a summary
thereof shall be delivered in open court. Article 75 – Reparations to victims
1.

The Court shall establish principles relating to reparations to, or in respect of, victims, including restitution,
compensation and rehabilitation. On this basis, in its decision the Court may, either upon request or on its own
101

, victims, including restitution,
compensation and rehabilitation. On this basis, in its decision the Court may, either upon request or on its own
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International Crimes Act (Cap. 60) Kenya
motion in exceptional circumstances, determine the scope and extent of any damage, loss and injury to, or in
respect of, victims and will state the principles on which it is acting. 2. The Court may make an order directly against a convicted person specifying appropriate reparations to, or in
respect of, victims, including restitution, compensation and rehabilitation. Where appropriate, the Court may order that the award for reparations be made through the Trust Fund provided
for in article 79. 3. Before making an order under this article, the Court may invite and shall take account of representations from
or on behalf of the convicted person, victims, other interested persons or interested States. 4. In exercising its power under this article, the Court may, after a person is convicted of a crime within the
jurisdiction of the Court, determine whether, in order to give effect to an order which it may make under this
article, it is necessary to seek measures under article 93, paragraph 1. 5. A State Party shall give effect to a decision under this article as if the provisions of article 109 were applicable
to this article. 6.

ragraph 1. 5. A State Party shall give effect to a decision under this article as if the provisions of article 109 were applicable
to this article. 6.

Nothing in this article shall be interpreted as prejudicing the rights of victims under national or international
law. Article 76 – Sentencing
1. In the event of a conviction, the Trial Chamber shall consider the appropriate sentence to be imposed and shall
take into account the evidence presented and submissions made during the trial that are relevant to the sentence. 2. Except where article 65 applies and before the completion of the trial, the Trial Chamber may on its own
motion and shall, at the request of the Prosecutor or the accused, hold a further hearing to hear any additional
evidence or submissions relevant to the sentence, in accordance with the Rules of Procedure and Evidence. 3. Where paragraph 2 applies, any representations under article 75 shall be heard during the further hearing
referred to in paragraph 2 and, if necessary, during any additional hearing. 4. The sentence shall be pronounced in public and, wherever possible, in the presence of the accused. Part 7 – PENALTIES
Article 77 – Applicable penalties
1.

sentence shall be pronounced in public and, wherever possible, in the presence of the accused. Part 7 – PENALTIES
Article 77 – Applicable penalties
1.

Subject to article 110, the Court may impose one of the following penalties on a person convicted of a crime
referred to in article 5 of this Statute—
(a) imprisonment for a specified number of years, which may not exceed a maximum of 30 years; or
(b) a term of life imprisonment when justified by the extreme gravity of the crime and the individual
circumstances of the convicted person. 2. In addition to imprisonment, the Court may order—
(a) a fine under the criteria provided for in the Rules of Procedure and Evidence;
(b) a forfeiture of proceeds, property and assets derived directly or indirectly from that crime, without
prejudice to the rights of bona fide third parties. Article 78 – Determination of the sentence
1. In determining the sentence, the Court shall, in accordance with the Rules of Procedure and Evidence, take
into account such factors as the gravity of the crime and the individual circumstances of the convicted person. 102

es of Procedure and Evidence, take
into account such factors as the gravity of the crime and the individual circumstances of the convicted person. 102

International Crimes Act (Cap. 60) Kenya
2. In imposing a sentence of imprisonment, the Court shall deduct the time, if any, previously spent in detention
in accordance with an order of the Court. The Court may deduct any time otherwise spent in detention in
connection with conduct underlying the crime. 3. When a person has been convicted of more than one crime, the Court shall pronounce a sentence for each
crime and a joint sentence specifying the total period of imprisonment. This period shall be no less than the
highest individual sentence pronounced and shall not exceed 30 years imprisonment or a sentence of life
imprisonment in conformity with article 77, paragraph 1(b). Article 79 – Trust Fund
1. A Trust Fund shall be established by decision of the Assembly of States Parties for the benefit of victims of
crimes within the jurisdiction of the Court, and of the families of such victims. 2. The Court may order money and other property collected through fines or forfeiture to be transferred, by order
of the Court, to the Trust Fund. 3. The Trust Fund shall be managed according to criteria to be determined by the Assembly of States Parties.

by order
of the Court, to the Trust Fund. 3. The Trust Fund shall be managed according to criteria to be determined by the Assembly of States Parties.

Article 80 – Non-prejudice to national application of penalties and national laws
Nothing in this Part affects the application by States of penalties prescribed by their national law, nor the law of
States which do not provide for penalties prescribed in this Part. Part 8 – APPEAL AND REVISION
Article 81 – Appeal against decision of acquittal or conviction or against sentence
1. A decision under article 74 may be appealed in accordance with the Rules of Procedure and Evidence as follows
—
(a) the Prosecutor may make an appeal on any of the following grounds—
(i) procedural error;
(ii) error of fact; or
(iii) error of law;
(b) the convicted person, or the Prosecutor on that person’s behalf, may make an appeal on any of the
following grounds—
(i) procedural error;
(ii) error of fact;
(iii) error of law; or
(iv) any other ground that affects the fairness or reliability of the proceedings or decision. 2.

al error;
(ii) error of fact;
(iii) error of law; or
(iv) any other ground that affects the fairness or reliability of the proceedings or decision. 2.

(a) A sentence may be appealed, in accordance with the Rules of Procedure and Evidence, by the Prosecutor or
the convicted person on the ground of disproportion between the crime and the sentence;
(b) If on an appeal against sentence the Court considers that there are grounds on which the conviction might
be set aside, wholly or in part, it may invite the Prosecutor and the convicted person to submit grounds
under article 81, paragraph 1(a) or (b), and may render a decision on conviction in accordance with article
83;
103

convicted person to submit grounds
under article 81, paragraph 1(a) or (b), and may render a decision on conviction in accordance with article
83;
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International Crimes Act (Cap. 60) Kenya
(c) The same procedure applies when the Court, on an appeal against conviction only, considers that there are
grounds to reduce the sentence under paragraph 2(a). 3. (a) Unless the Trial Chamber orders otherwise, a convicted person shall remain in custody pending an appeal. (b) When a convicted person’s time in custody exceeds the sentence of imprisonment imposed, that person
shall be released, except that if the Prosecutor is also appealing, the release may be subject to the
conditions under sub-paragraph (c) below. (c) In case of an acquittal, the accused shall be released immediately, subject to the following—
(i) under exceptional circumstances, and having regard, inter alia, to the concrete risk of flight, the
seriousness of the offence charged and the probability of success on appeal, the Trial Chamber, at
the request of the Prosecutor, may maintain the detention of the person pending appeal;
(ii) a decision by the Trial Chamber under sub-paragraph (c)(i) may be appealed in accordance with the
Rules of Procedure and Evidence. 4.

ing appeal;
(ii) a decision by the Trial Chamber under sub-paragraph (c)(i) may be appealed in accordance with the
Rules of Procedure and Evidence. 4.

Subject to the provisions of paragraph 3(a) and (b), execution of the decision or sentence shall be suspended
during the period allowed for appeal and for the duration of the appeal proceedings. Article 82 – Appeal against other decisions
1. Either party may appeal any of the following decisions in accordance with the Rules of Procedure and Evidence
—
(a) a decision with respect to jurisdiction or admissibility;
(b) a decision granting or denying release of the person being investigated or prosecuted;
(c) a decision of the Pre-Trial Chamber to act on its own initiative under article 56, paragraph 3;
(d) a decision that involves an issue that would significantly affect the fair and expeditious conduct of the
proceedings or the outcome of the trial, and for which, in the opinion of the Pre-Trial or Trial Chamber, an
immediate resolution by the Appeals Chamber may materially advance the proceedings. 2. A decision of the Pre-Trial Chamber under article 57, paragraph 3(d), may be appealed against by the State
concerned or by the Prosecutor, with the leave of the Pre-Trial Chamber. The appeal shall be heard on an
expedited basis. 3.

aled against by the State
concerned or by the Prosecutor, with the leave of the Pre-Trial Chamber. The appeal shall be heard on an
expedited basis. 3.

An appeal shall not of itself have suspensive effect unless the Appeals Chamber so orders, upon request, in
accordance with the Rules of Procedure and Evidence. 4. A legal representative of the victims, the convicted person or a bona fide owner of property adversely affected
by an order under article 75 may appeal against the order for reparations, as provided in the Rules of Procedure
and Evidence. Article 83 – Proceedings on appeal
1. For the purposes of proceedings under article 81 and this article, the Appeals Chamber shall have all the
powers of the Trial Chamber. 2. If the Appeals Chamber finds that the proceedings appealed from were unfair in a way that affected the
reliability of the decision or sentence, or that the decision or sentence appealed from was materially affected by
error of fact or law or procedural error, it may—
(a) reverse or amend the decision or sentence; or
104

tence appealed from was materially affected by
error of fact or law or procedural error, it may—
(a) reverse or amend the decision or sentence; or
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International Crimes Act (Cap. 60) Kenya
(b) order a new trial before a different Trial Chamber. For these purposes, the Appeals Chamber may remand a factual issue to the original Trial Chamber for it to
determine the issue and to report back accordingly, or may itself call evidence to determine the issue. When the
decision or sentence has been appealed only by the person convicted, or the Prosecutor on that person’s behalf, it
cannot be amended to his or her detriment. 3. If in an appeal against sentence the Appeals Chamber finds that the sentence is disproportionate to the crime,
it may vary the sentence in accordance with Part 7. 4. The judgement of the Appeals Chamber shall be taken by a majority of the judges and shall be delivered
in open court. The judgement shall state the reasons on which it is based. When there is no unanimity, the
judgement of the Appeals Chamber shall contain the views of the majority and the minority, but a judge may
deliver a separate or dissenting opinion on a question of law. 5. The Appeals Chamber may deliver its judgement in the absence of the person acquitted or convicted. Article 84 – Revision of conviction or sentence
1.

The Appeals Chamber may deliver its judgement in the absence of the person acquitted or convicted. Article 84 – Revision of conviction or sentence
1.

The convicted person or, after death, spouses, children, parents or one person alive at the time of the accused’s
death who has been given express written instructions from the accused to bring such a claim, or the Prosecutor
on the person’s behalf, may apply to the Appeals Chamber to revise the final judgement of conviction or sentence
on the grounds that—
(a) new evidence has been discovered that—
(i) was not available at the time of trial, and such unavailability was not wholly or partially attributable
to the party making application; and
(ii) is sufficiently important that had it been proved at trial it would have been likely to have resulted in
a different verdict;
(b) it has been newly discovered that decisive evidence, taken into account at trial and upon which the
conviction depends, was false, forged or falsified;
(c) one or more of the judges who participated in conviction or confirmation of the charges has committed, in
that case, an act of serious misconduct or serious breach of duty of sufficient gravity to justify the removal
of that judge or those judges from office under article 46. 2.

rious misconduct or serious breach of duty of sufficient gravity to justify the removal
of that judge or those judges from office under article 46. 2.

The Appeals Chamber shall reject the application if it considers it to be unfounded. If it determines that the
application is meritorious, it may, as appropriate—
(a) reconvene the original Trial Chamber;
(b) constitute a new Trial Chamber; or
(c) retain jurisdiction over the matter, with a view to, after hearing the parties in the manner set forth in the
Rules of Procedure and Evidence, arriving at a determination on whether the judgement should be revised. Article 85 – Compensation to an arrested or convicted person
1. Anyone who has been the victim of unlawful arrest or detention shall have an enforceable right to
compensation. 2. When a person has by a final decision been convicted of a criminal offence, and when subsequently his or her
conviction has been reversed on the ground that a new or newly discovered fact shows conclusively that there
has been a miscarriage of justice, the person who has suffered punishment as a result of such conviction shall be
compensated according to law, unless it is proved that the non-disclosure of the unknown fact in time is wholly
or partly attributable to him or her. 105

pensated according to law, unless it is proved that the non-disclosure of the unknown fact in time is wholly
or partly attributable to him or her. 105

International Crimes Act (Cap. 60) Kenya
3. In exceptional circumstances, where the Court finds conclusive facts showing that there has been a grave and
manifest miscarriage of justice, it may in its discretion award compensation, according to the criteria provided in
the Rules of Procedure and Evidence, to a person who has been released from detention following a final decision
of acquittal or a termination of the proceedings for that reason. Part 9 – INTERNATIONAL COOPERATION AND JUDICIAL ASSISTANCE
Article 86 – General obligation to cooperate
States Parties shall, in accordance with the provisions of this Statute, cooperate fully with the Court in its
investigation and prosecution of crimes within the jurisdiction of the Court. Article 87 – Requests for cooperation: general provisions
1. (a) The Court shall have the authority to make requests to States Parties for cooperation. The requests shall
be transmitted through the diplomatic channel or any other appropriate channel as may be designated by
each State Party upon ratification, acceptance, approval or accession.

the diplomatic channel or any other appropriate channel as may be designated by
each State Party upon ratification, acceptance, approval or accession.

Subsequent changes to the designation shall be made by each State Party in accordance with the Rules of
Procedure and Evidence. (b) When appropriate, without prejudice to the provisions of subparagraph (a), requests may also be
transmitted through the International Criminal Police Organization or any appropriate regional
organization. 2. Requests for cooperation and any documents supporting the request shall either be in or be accompanied by
a translation into an official language of the requested State or one of the working languages of the Court, in
accordance with the choice made by that State upon ratification, acceptance, approval or accession. Subsequent changes to this choice shall be made in accordance with the Rules of Procedure and Evidence. 3. The requested State shall keep confidential a request for cooperation and any documents supporting the
request, except to the extent that the disclosure is necessary for execution of the request. 4.

quest for cooperation and any documents supporting the
request, except to the extent that the disclosure is necessary for execution of the request. 4.

In relation to any request for assistance presented under this Part, the Court may take such measures,
including measures related to the protection of information, as may be necessary to ensure the safety or physical
or psychological well-being of any victims, potential witnesses and their families. The Court may request that
any information that is made available under this Part shall be provided and handled in a manner that protects
the safety and physical or psychological well-being of any victims, potential witnesses and their families. 5. (a) The Court may invite any State not party to this Statute to provide assistance under this Part on the basis
of an ad hoc arrangement, an agreement with such State or any other appropriate basis
(b) Where a State not party to this Statute, which has entered into an ad hoc arrangement or an agreement
with the Court, fails to cooperate with requests pursuant to any such arrangement or agreement, the Court
may so inform the Assembly of States Parties or, where the Security Council referred the matter to the
Court, the Security Council. 6. The Court may ask any intergovernmental organization to provide information or documents.

l referred the matter to the
Court, the Security Council. 6. The Court may ask any intergovernmental organization to provide information or documents.

The Court may
also ask for other forms of cooperation and assistance which may be agreed upon with such an organization and
which are in accordance with its competence or mandate. 7. Where a State Party fails to comply with a request to cooperate by the Court contrary to the provisions of this
Statute, thereby preventing the Court from exercising its functions and powers under this Statute, the Court may
106

ontrary to the provisions of this
Statute, thereby preventing the Court from exercising its functions and powers under this Statute, the Court may
106

International Crimes Act (Cap. 60) Kenya
make a finding to that effect and refer the matter to the Assembly of States Parties or, where the Security Council
referred the matter to the Court, to the Security Council. Article 88 – Availability of procedures under national
law States Parties shall ensure that there are procedures available under their national law for all of the forms of
cooperation which are specified under this Part. 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.

es 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.

sit 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 sub-paragraph (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 sub-paragraph 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.

om 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 90 – Competing requests
1. A State Party which receives a request from the Court for the surrender of a person under article 89 shall, if it
also receives a request from any other State for the extradition of the same person for the same conduct which
107

erson under article 89 shall, if it
also receives a request from any other State for the extradition of the same person for the same conduct which
107

International Crimes Act (Cap. 60) Kenya
forms the basis of the crime for which the Court seeks the person’s surrender, notify the Court and the requesting
State of that fact. 2. Where the requesting State is a State Party, the requested State shall give priority to the request from the
Court if—
(a) the Court has, pursuant to article 18 or 19, made a determination that the case in respect of which
surrender is sought is admissible and that determination takes into account the investigation or
prosecution conducted by the requesting State in respect of its request for extradition; or
(b) the Court makes the determination described in sub-paragraph (a) pursuant to the requested State’s
notification under paragraph 1. 3. Where a determination under paragraph 2(a) has not been made, the requested State may, at its discretion,
pending the determination of the Court under paragraph 2 (b), proceed to deal with the request for extradition
from the requesting State but shall not extradite the person until the Court has determined that the case is
inadmissible. The Court’s determination shall be made on an expedited basis. 4.

t extradite the person until the Court has determined that the case is
inadmissible. The Court’s determination shall be made on an expedited basis. 4.

If the requesting State is a State not Party to this Statute the requested State, if it is not under an international
obligation to extradite the person to the requesting State, shall give priority to the request for surrender from the
Court, if the Court has determined that the case is admissible. 5. Where a case under paragraph 4 has not been determined to be admissible by the Court, the requested State
may, at its discretion, proceed to deal with the request for extradition from the requesting State. 6. In cases where paragraph 4 applies except that the requested State is under an existing international
obligation to extradite the person to the requesting State not Party to this Statute, the requested State shall
determine whether to surrender the person to the Court or extradite the person to the requesting State.

rty to this Statute, the requested State shall
determine whether to surrender the person to the Court or extradite the person to the requesting State.

In
making its decision, the requested State shall consider all the relevant factors, including but not limited to—
(a) the respective dates of the requests;
(b) the interests of the requesting State including, where relevant, whether the crime was committed in its
territory and the nationality of the victims and of the person sought; and
(c) the possibility of subsequent surrender between the Court and the requesting State. 7. Where a State Party which receives a request from the Court for the surrender of a person also receives a
request from any State for the extradition of the same person for conduct other than that which constitutes the
crime for which the Court seeks the person’s surrender—
(a) the requested State shall, if it is not under an existing international obligation to extradite the person to
the requesting State, give priority to the request from the Court;
(b) the requested State shall, if it is under an existing international obligation to extradite the person to the
requesting State, determine whether to surrender the person to the Court or to extradite the person to
the requesting State.

tradite the person to the
requesting State, determine whether to surrender the person to the Court or to extradite the person to
the requesting State.

In making its decision, the requested State shall consider all the relevant factors,
including but not limited to those set out in paragraph 6, but shall give special consideration to the
relative nature and gravity of the conduct in question. 8. Where pursuant to a notification under this article, the Court has determined a case to be inadmissible, and
subsequently extradition to the requesting State is refused, the requested State shall notify the Court of this
decision. 108

to be inadmissible, and
subsequently extradition to the requesting State is refused, the requested State shall notify the Court of this
decision. 108

International Crimes Act (Cap. 60) Kenya
Article 91 – Contents of request for arrest and surrender
1. A request for arrest and surrender shall be made in writing. In urgent cases, a request may be made by any
medium capable of delivering a written record, provided that the request shall be confirmed through the channel
provided for in article 87, paragraph 1(a). 2. In the case of a request for the arrest and surrender of a person for whom a warrant of arrest has been issued by
the Pre-Trial Chamber under article 58, the request shall contain or be supported by—
(a) information describing the person sought, sufficient to identify the person, and information as to that
person’s probable location;
(b) a copy of the warrant of arrest; and
(c) such documents, statements or information as may be necessary to meet the requirements for the
surrender process in the requested State, except that those requirements should not be more burdensome
than those applicable to requests for extradition pursuant to treaties or arrangements between the
requested State and other States and should, if possible, be less burdensome, taking into account the
distinct nature of the Court. 3.

nts between the
requested State and other States and should, if possible, be less burdensome, taking into account the
distinct nature of the Court. 3.

In the case of a request for the arrest and surrender of a person already convicted, the request shall contain or
be supported by—
(a) a copy of any warrant of arrest for that person;
(b) a copy of the judgement of conviction;
(c) information to demonstrate that the person sought is the one referred to in the judgement of conviction;
and
(d) if the person sought has been sentenced, a copy of the sentence imposed and, in the case of a sentence for
imprisonment, a statement of any time already served and the time remaining to be served. 4. Upon the request of the Court, a State Party shall consult with the Court, either generally or with respect to a
specific matter, regarding any requirements under its national law that may apply under paragraph 2(c). During
the consultations, the State Party shall advise the Court of the specific requirements of its national law. Article 92 – Provisional arrest
1. In urgent cases, the Court may request the provisional arrest of the person sought, pending presentation of the
request for surrender and the documents supporting the request as specified in article 91. 2.

arrest of the person sought, pending presentation of the
request for surrender and the documents supporting the request as specified in article 91. 2.

The request for provisional arrest shall be made by any medium capable of delivering a written record and shall
contain—
(a) information describing the person sought, sufficient to identify the person, and information as to that
person’s probable location;
(b) a concise statement of the crimes for which the person’s arrest is sought and of the facts which are alleged
to constitute those crimes, including, where possible, the date and location of the crime;
(c) a statement of the existence of a warrant of arrest or a judgement of conviction against the person sought;
and
(d) a statement that a request for surrender of the person sought will follow. 3. A person who is provisionally arrested may be released from custody if the requested State has not received
the request for surrender and the documents supporting the request as specified in article 91 within the time
109

the requested State has not received
the request for surrender and the documents supporting the request as specified in article 91 within the time
109

International Crimes Act (Cap. 60) Kenya
limits specified in the Rules of Procedure and Evidence. However, the person may consent to surrender before the
expiration of this period if permitted by the law of the requested State. In such a case, the requested State shall proceed to surrender the person to the Court as soon as possible. 4. The fact that the person sought has been released from custody pursuant to paragraph 3 shall not prejudice
the subsequent arrest and surrender of that person if the request for surrender and the documents supporting the
request are delivered at a later date. Article 93 – Other forms of cooperation
1.

person if the request for surrender and the documents supporting the
request are delivered at a later date. Article 93 – Other forms of cooperation
1.

States Parties shall, in accordance with the provisions of this Part and under procedures of national
law, comply with requests by the Court to provide the following assistance in relation to investigations or
prosecutions—
(a) the identification and whereabouts of persons or the location of items;
(b) the taking of evidence, including testimony under oath, and the production of evidence, including expert
opinions and reports necessary to the Court;
(c) the questioning of any person being investigated or prosecuted;
(d) the service of documents, including judicial documents;
(e) facilitating the voluntary appearance of persons as witnesses or experts before the Court;
(f) the temporary transfer of persons as provided in paragraph 7;
(g) the examination of places or sites, including the exhumation and examination of grave sites;
(h) the execution of searches and seizures;
(i) the provision of records and documents, including official records and documents;
(j) the protection of victims and witnesses and the preservation of evidence;
(k) the identification, tracing and freezing or seizure of proceeds, property and assets and instrumentalities of
crimes for the purpose of eventual forfeiture, without prejudice to the rights of bona fide third parties; and
(l) any other type of assistance which is not prohibited by the law of the requested State, with a view to
facilitating the investigation and prosecution of crimes within the jurisdiction of the Court.

bited by the law of the requested State, with a view to
facilitating the investigation and prosecution of crimes within the jurisdiction of the Court.

2. The Court shall have the authority to provide an assurance to a witness or an expert appearing before the Court
that he or she will not be prosecuted, detained or subjected to any restriction of personal freedom by the Court in
respect of any act or omission that preceded the departure of that person from the requested State. 3. Where execution of a particular measure of assistance detailed in a request presented under paragraph 1, is
prohibited in the requested State on the basis of an existing fundamental legal principle of general application,
the requested State shall promptly consult with the Court to try to resolve the matter. In the consultations,
consideration should be given to whether the assistance can be rendered in another manner or subject to
conditions. If after consultations the matter cannot be resolved, the Court shall modify the request as necessary. 4. In accordance with article 72, a State Party may deny a request for assistance, in whole or in part, only if the
request concerns the production of any documents or disclosure of evidence which relates to its national security. 5.

in whole or in part, only if the
request concerns the production of any documents or disclosure of evidence which relates to its national security. 5.

Before denying a request for assistance under paragraph 1(l), the requested State shall consider whether the
assistance can be provided subject to specified conditions, or whether the assistance can be provided at a later
date or in an alternative manner, provided that if the Court or the Prosecutor accepts the assistance subject to
conditions, the Court or the Prosecutor shall abide by them. 6. If a request for assistance is denied, the requested State Party shall promptly inform the Court or the
Prosecutor of the reasons for such denial. 7. 110

a request for assistance is denied, the requested State Party shall promptly inform the Court or the
Prosecutor of the reasons for such denial. 7. 110

International Crimes Act (Cap. 60) Kenya
(a) The Court may request the temporary transfer of a person in custody for purposes of identification or for
obtaining testimony or other assistance. The person may be transferred if the following conditions are
fulfilled—
(i) the person freely gives his or her informed consent to the transfer; and
(ii) the requested State agrees to the transfer, subject to such conditions as that State and the Court
may agree. (b) The person being transferred shall remain in custody. When the purposes of the transfer have been
fulfilled, the Court shall return the person without delay to the requested State. 8. (a) The Court shall ensure the confidentiality of documents and information, except as required for the
investigation and proceedings described in the request. (b) The requested State may, when necessary, transmit documents or information to the Prosecutor on a
confidential basis. The Prosecutor may then use them solely for the purpose of generating new evidence. (c) The requested State may, on its own motion or at the request of the Prosecutor, subsequently consent
to the disclosure of such documents or information.

e requested State may, on its own motion or at the request of the Prosecutor, subsequently consent
to the disclosure of such documents or information.

They may then be used as evidence pursuant to the
provisions of Parts 5 and 6 and in accordance with the Rules of Procedure and Evidence
9. (a) (i) In the event that a State Party receives competing requests, other than for surrender or extradition,
from the Court and from another State pursuant to an international obligation, the State Party shall
endeavour, in consultation with the Court and the other State, to meet both requests, if necessary
by postponing or attaching conditions to one or the other request. (ii) Failing that, competing requests shall be resolved in accordance with the principles established in
article 90. (b) Where, however, the request from the Court concerns information, property or persons which are subject
to the control of a third State or an international organization by virtue of an international agreement,
the requested States shall so inform the Court and the Court shall direct its request to the third State or
international organization. 10.

agreement,
the requested States shall so inform the Court and the Court shall direct its request to the third State or
international organization. 10.

(a) The Court may, upon request, cooperate with and provide assistance to a State Party conducting an
investigation into or trial in respect of conduct which constitutes a crime within the jurisdiction of the
Court or which constitutes a serious crime under the national law of the requesting State. (b) (i) The assistance provided under sub-paragraph (a) shall include, inter alia—
(a) the transmission of statements, documents or other types of evidence obtained in the course
of an investigation or a trial conducted by the Court; and
(b) the questioning of any person detained by order of the Court;
(ii) In the case of assistance under sub-paragraph (b)(i) a—
(a) if the documents or other types of evidence have been obtained with the assistance of a
State, such transmission shall require the consent of that State;
(b) if the statements, documents or other types of evidence have been provided by a witness or
expert, such transmission shall be subject to the provisions of article 68. (c) The Court may, under the conditions set out in this paragraph, grant a request for assistance
under this paragraph from a State which is not a Party to this Statute. 111

r the conditions set out in this paragraph, grant a request for assistance
under this paragraph from a State which is not a Party to this Statute. 111

International Crimes Act (Cap. 60) Kenya
Article 94 – Postponement of execution of a request
in respect of ongoing investigation or prosecution
1. If the immediate execution of a request would interfere with an ongoing investigation or prosecution of a
case different from that to which the request relates, the requested State may postpone the execution of the
request for a period of time agreed upon with the Court. However, the postponement shall be no longer than is
necessary to complete the relevant investigation or prosecution in the requested State. Before making a decision
to postpone, the requested State should consider whether the assistance may be immediately provided subject to
certain conditions. 2. If a decision to postpone is taken pursuant to paragraph 1, the Prosecutor may, however, seek measures to
preserve evidence, pursuant to article 93, paragraph 1 (j).

o postpone is taken pursuant to paragraph 1, the Prosecutor may, however, seek measures to
preserve evidence, pursuant to article 93, paragraph 1 (j).

Article 95 – Postponement of execution of a
request in respect of an admissibility challenge
Where there is an admissibility challenge under consideration by the Court pursuant to article 18 or 19, the
requested State may postpone the execution of a request under this Part pending a determination by the Court,
unless the Court has specifically ordered that the Prosecutor may pursue the collection of such evidence pursuant
to article 18 or 19. Article 96 – Contents of request for other forms of assistance under article 93
1. A request for other forms of assistance referred to in article 93 shall be made in writing. In urgent cases, a
request may be made by any medium capable of delivering a written record, provided that the request shall be
confirmed through the channel provided for in article 87, paragraph 1(a). 2.

apable of delivering a written record, provided that the request shall be
confirmed through the channel provided for in article 87, paragraph 1(a). 2.

The request shall, as applicable, contain or be supported by the following—
(a) a concise statement of the purpose of the request and the assistance sought, including the legal basis and
the grounds for the request;
(b) as much detailed information as possible about the location or identification of any person or place that
must be found or identified in order for the assistance sought to be provided;
(c) a concise statement of the essential facts underlying the request;
(d) the reasons for and details of any procedure or requirement to be followed;
(e) such information as may be required under the law of the requested State in order to execute the request;
and
(f) any other information relevant in order for the assistance sought to be provided. 3. Upon the request of the Court, a State Party shall consult with the Court, either generally or with respect to a
specific matter, regarding any requirements under its national law that may apply under paragraph 2(e). During
the consultations, the State Party shall advise the Court of the specific requirements of its national law. 4.

may apply under paragraph 2(e). During
the consultations, the State Party shall advise the Court of the specific requirements of its national law. 4.

The provisions of this article shall, where applicable, also apply in respect of a request for assistance made to
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;
112

he Court without delay in order to
resolve the matter. Such problems may include, inter alia—
(a) insufficient information to execute the request;
112

International Crimes Act (Cap. 60) Kenya
(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. Article 98 – Cooperation with respect to
waiver of immunity and consent to surrender
1. The Court may not proceed with a request for surrender or assistance which would require the requested
State to act inconsistently with its obligations under international law with respect to the State or diplomatic
immunity of a person or property of a third State, unless the Court can first obtain the cooperation of that third
State for the waiver of the immunity. 2.

ity of a person or property of a third State, unless the Court can first obtain the cooperation of that third
State for the waiver of the immunity. 2.

The Court may not proceed with a request for surrender which would require the requested State to act
inconsistently with its obligations under international agreements pursuant to which the consent of a
sending State is required to surrender a person of that State to the Court, unless the Court can first obtain the
cooperation of the sending State for the giving of consent for the surrender. Article 99 – Execution of requests under articles 93 and 96
1. Requests for assistance shall be executed in accordance with the relevant procedure under the law of the
requested State and, unless prohibited by such law, in the manner specified in the request, including following
any procedure outlined therein or permitting persons specified in the request to be present at and assist in the
execution process. 2. In the case of an urgent request, the documents or evidence produced in response shall, at the request of the
Court, be sent urgently. 3. Replies from the requested State shall be transmitted in their original language and form. 4.

shall, at the request of the
Court, be sent urgently. 3. Replies from the requested State shall be transmitted in their original language and form. 4.

Without prejudice to other articles in this Part, where it is necessary for the successful execution of a request
which can be executed without any compulsory measures, including specifically the interview of or taking
evidence from a person on a voluntary basis, including doing so without the presence of the authorities of the
requested State Party if it is essential for the request to be executed, and the examination without modification of
a public site or other public place, the Prosecutor may execute such request directly on the territory of a State as
follows —
(a) when the State Party requested is a State on the territory of which the crime is alleged to have been
committed, and there has been a determination of admissibility pursuant to article 18 or 19, the
Prosecutor may directly execute such request following all possible consultations with the requested State
Party;
(b) in other cases, the Prosecutor may execute such request following consultations with the requested State
Party and subject to any reasonable conditions or concerns raised by that State Party.

e such request following consultations with the requested State
Party and subject to any reasonable conditions or concerns raised by that State Party.

Where the requested
State Party identifies problems with the execution of a request pursuant to this sub-paragraph it shall,
without delay, consult with the Court to resolve the matter. 5. Provisions allowing a person heard or examined by the Court under article 72 to invoke restrictions designed to
prevent disclosure of confidential information connected with national security shall also apply to the execution
of requests for assistance under this article. 113

sure of confidential information connected with national security shall also apply to the execution
of requests for assistance under this article. 113

International Crimes Act (Cap. 60) Kenya
Article 100 – Costs
1. The ordinary costs for execution of requests in the territory of the requested State shall be borne by that State,
except for the following, which shall be borne by the Court—
(a) costs associated with the travel and security of witnesses and experts or the transfer under article 93 of
persons in custody;
(b) costs of translation, interpretation and transcription;
(c) travel and subsistence costs of the judges, the Prosecutor, the Deputy Prosecutors, the Registrar, the
Deputy Registrar and staff of any organ of the Court;
(d) costs of any expert opinion or report requested by the Court;
(e) costs associated with the transport of a person being surrendered to the Court by a custodial State; and
(f) following consultations, any extraordinary costs that may result from the execution of a request. 2. The provisions of paragraph 1 shall, as appropriate, apply to requests from States Parties to the Court. In that
case, the Court shall bear the ordinary costs of execution. Article 101 – Rule of speciality
1.

to requests from States Parties to the Court. In that
case, the Court shall bear the ordinary costs of execution. Article 101 – Rule of speciality
1.

A person surrendered to the Court under this Statute shall not be proceeded against, punished or detained for
any conduct committed prior to surrender, other than the conduct or course of conduct which forms the basis of
the crimes for which that person has been surrendered. 2. The Court may request a waiver of the requirements of paragraph 1 from the State which surrendered the
person to the Court and, if necessary, the Court shall provide additional information in accordance with article
91. States Parties shall have the authority to provide a waiver to the Court and should endeavour to do so. Article 102 – Use of terms For the purposes of this Statute—
(a) "surrender" means the delivering up of a person by a State to the Court, pursuant to this Statute;
(b) "extradition" means the delivering up of a person by one State to another as provided by treaty, convention
or national legislation. Part 10 – ENFORCEMENT
Article 103 – Role of States in enforcement of sentences of imprisonment
1.(a) A sentence of imprisonment shall be served in a State designated by the Court from a list of States which
have indicated to the Court their willingness to accept sentenced persons.

ll be served in a State designated by the Court from a list of States which
have indicated to the Court their willingness to accept sentenced persons.

(b) At the time of declaring its willingness to accept sentenced persons, a State may attach conditions to its
acceptance as agreed by the Court and in accordance with this Part. (c) A State designated in a particular case shall promptly inform the Court whether it accepts the Court’s
designation. 2. (a) The State of enforcement shall notify the Court of any circumstances, including the exercise of
any conditions agreed under paragraph 1, which could materially affect the terms or extent of the
imprisonment. The Court shall be given at least 45 days’ notice of any such known or foreseeable
114

ould materially affect the terms or extent of the
imprisonment. The Court shall be given at least 45 days’ notice of any such known or foreseeable
114

International Crimes Act (Cap. 60) Kenya
circumstances. During this period, the State of enforcement shall take no action that might prejudice its
obligations under article 110. (b) Where the Court cannot agree to the circumstances referred to in sub- paragraph (a), it shall notify the
State of enforcement and proceed in accordance with article 104, paragraph 1. 3. In exercising its discretion to make a designation under paragraph 1, the Court shall take into account the
following—
(a) the principle that States Parties should share the responsibility for enforcing sentences of imprisonment,
in accordance with principles of equitable distribution, as provided in the Rules of Procedure and
Evidence;
(b) the application of widely accepted international treaty standards governing the treatment of prisoners;
(c) the views of the sentenced person;
(d) the nationality of the sentenced person;
(e) such other factors regarding the circumstances of the crime or the person sentenced, or the effective
enforcement of the sentence, as may be appropriate in designating the State of enforcement. 4.

of the crime or the person sentenced, or the effective
enforcement of the sentence, as may be appropriate in designating the State of enforcement. 4.

If no State is designated under paragraph 1, the sentence of imprisonment shall be served in a prison facility
made available by the host State, in accordance with the conditions set out in the headquarters agreement
referred to in article 3, paragraph 2. In such a case, the costs arising out of the enforcement of a sentence of
imprisonment shall be borne by the Court. Article 104 – Change in designation of State of enforcement
1. The Court may, at any time, decide to transfer a sentenced person to a prison of another State. 2. A sentenced person may, at any time, apply to the Court to be transferred from the State of enforcement. Article 105 – Enforcement of the sentence
1. Subject to conditions which a State may have specified in accordance with article 103, paragraph 1(b), the
sentence of imprisonment shall be binding on the States Parties, which shall in no case modify it. 2. The Court alone shall have the right to decide any application for appeal and revision. The State of
enforcement shall not impede the making of any such application by a sentenced person. Article 106 – Supervision of enforcement of
sentences and conditions of imprisonment
1.

pede the making of any such application by a sentenced person. Article 106 – Supervision of enforcement of
sentences and conditions of imprisonment
1.

The enforcement of a sentence of imprisonment shall be subject to the supervision of the Court and shall be
consistent with widely accepted international treaty standards governing treatment of prisoners. 2. The conditions of imprisonment shall be governed by the law of the State of enforcement and shall be
consistent with widely accepted international treaty standards governing treatment of prisoners; in no case shall
such conditions be more or less favourable than those available to prisoners convicted of similar offences in the
State of enforcement. 3. Communications between a sentenced person and the Court shall be unimpeded and confidential. Article 107 – Transfer of the person upon completion of sentence
1. Following completion of the sentence, a person who is not a national of the State of enforcement may, in
accordance with the law of the State of enforcement, be transferred to a State which is obliged to receive him or
her, or to another State which agrees to receive him or her, taking into account any wishes of the person to be
transferred to that State, unless the State of enforcement authorizes the person to remain in its territory. 115

ccount any wishes of the person to be
transferred to that State, unless the State of enforcement authorizes the person to remain in its territory. 115

International Crimes Act (Cap. 60) Kenya
2. If no State bears the costs arising out of transferring the person to another State pursuant to paragraph 1, such
costs shall be borne by the Court. 3. Subject to the provisions of article 108, the State of enforcement may also, in accordance with its national law,
extradite or otherwise surrender the person to a State which has requested the extradition or surrender of the
person for purposes of trial or enforcement of a sentence. Article 108 – Limitation on the prosecution or punishment of other offences
1. A sentenced person in the custody of the State of enforcement shall not be subject to prosecution or
punishment or to extradition to a third State for any conduct engaged in prior to that person’s delivery to the
State of enforcement, unless such prosecution, punishment or extradition has been approved by the Court at the
request of the State of enforcement. 2. The Court shall decide the matter after having heard the views of the sentenced person. 3.

by the Court at the
request of the State of enforcement. 2. The Court shall decide the matter after having heard the views of the sentenced person. 3.

Paragraph 1 shall cease to apply if the sentenced person remains voluntarily for more than 30 days in the
territory of the State of enforcement after having served the full sentence imposed by the Court, or returns to the
territory of that State after having left it. Article 109 – Enforcement of fines and forfeiture measures
1. States Parties shall give effect to fines or forfeitures ordered by the Court under Part 7, without prejudice to the
rights of bona fide third parties, and in accordance with the procedure of their national law. 2. If a State Party is unable to give effect to an order for forfeiture, it shall take measures to recover the value of
the proceeds, property or assets ordered by the Court to be forfeited, without prejudice to the rights of bona fide
third parties. 3. Property, or the proceeds of the sale of real property or, where appropriate, the sale of other property, which
is obtained by a State Party as a result of its enforcement of a judgement of the Court shall be transferred to the
Court. Article 110 – Review by the Court concerning reduction of sentence
1.

f its enforcement of a judgement of the Court shall be transferred to the
Court. Article 110 – Review by the Court concerning reduction of sentence
1.

The State of enforcement shall not release the person before expiry of the sentence pronounced by the Court. 2. The Court alone shall have the right to decide any reduction of sentence, and shall rule on the matter after
having heard the person. 3. When the person has served two thirds of the sentence, or 25 years in the case of life imprisonment, the Court
shall review the sentence to determine whether it should be reduced. Such a review shall not be conducted before
that time. 4.

imprisonment, the Court
shall review the sentence to determine whether it should be reduced. Such a review shall not be conducted before
that time. 4.

In its review under paragraph 3, the Court may reduce the sentence if it finds that one or more of the following
factors are present—
(a) the early and continuing willingness of the person to cooperate with the Court in its investigations and
prosecutions;
(b) the voluntary assistance of the person in enabling the enforcement of the judgements and orders of the
Court in other cases, and in particular providing assistance in locating assets subject to orders of fine,
forfeiture or reparation which may be used for the benefit of victims; or
(c) other factors establishing a clear and significant change of circumstances sufficient to justify the reduction
of sentence, as provided in the Rules of Procedure and Evidence. 5. If the Court determines in its initial review under paragraph 3 that it is not appropriate to reduce the sentence,
it shall thereafter review the question of reduction of sentence at such intervals and applying such criteria as
provided for in the Rules of Procedure and Evidence. 116

review the question of reduction of sentence at such intervals and applying such criteria as
provided for in the Rules of Procedure and Evidence. 116

International Crimes Act (Cap. 60) Kenya
Article 111 – Escape
If a convicted person escapes from custody and flees the State of enforcement, that State may, after consultation
with the Court, request the person’s surrender from the State in which the person is located pursuant to existing
bilateral or multilateral arrangements, or may request that the Court seek the person’s surrender, in accordance
with Part 9. It may direct that the person be delivered to the State in which he or she was serving the sentence or
to another State designated by the Court. Part 11 – ASSEMBLY OF STATES PARTIES
Article 112 – Assembly of States Parties
1. An Assembly of States Parties to this Statute is hereby established. Each State Party shall have one
representative in the Assembly who may be accompanied by alternates and advisers. Other States which have
signed this Statute or the Final Act may be observers in the Assembly. 2.

y who may be accompanied by alternates and advisers. Other States which have
signed this Statute or the Final Act may be observers in the Assembly. 2.

The Assembly shall—
(a) consider and adopt, as appropriate, recommendations of the Preparatory Commission;
(b) provide management oversight to the Presidency, the Prosecutor and the Registrar regarding the
administration of the Court;
(c) consider the reports and activities of the Bureau established under paragraph 3 and take appropriate
action in regard thereto;
(d) consider and decide the budget for the Court;
(e) decide whether to alter, in accordance with article 36, the number of judges;
(f) consider pursuant to article 87, paragraphs 5 and 7, any question relating to non-cooperation;
(g) perform any other function consistent with this Statute or the Rules of Procedure and Evidence. 3. (a) The Assembly shall have a Bureau consisting of a President, two Vice- Presidents and 18 members elected
by the Assembly for three-year terms. (b) The Bureau shall have a representative character, taking into account, in particular, equitable geographical
distribution and the adequate representation of the principal legal systems of the world. (c) The Bureau shall meet as often as necessary, but at least once a year. It shall assist the Assembly in the discharge of its responsibilities. 4.

. (c) The Bureau shall meet as often as necessary, but at least once a year. It shall assist the Assembly in the discharge of its responsibilities. 4.

The Assembly may establish such subsidiary bodies as may be necessary, including an independent oversight
mechanism for inspection, evaluation and investigation of the Court, in order to enhance its efficiency and
economy. 5. The President of the Court, the Prosecutor and the Registrar or their representatives may participate, as
appropriate, in meetings of the Assembly and of the Bureau. 6. The Assembly shall meet at the seat of the Court or at the Headquarters of the United Nations once a year
and, when circumstances so require, hold special sessions. Except as otherwise specified in this Statute, special
sessions shall be convened by the Bureau on its own initiative or at the request of one third of the States Parties. 7. Each State Party shall have one vote. Every effort shall be made to reach decisions by consensus in the
Assembly and in the Bureau. If consensus cannot be reached, except as otherwise provided in the Statute—
117

de to reach decisions by consensus in the
Assembly and in the Bureau. If consensus cannot be reached, except as otherwise provided in the Statute—
117

International Crimes Act (Cap. 60) Kenya
(a) decisions on matters of substance must be approved by a two-thirds majority of those present and voting
provided that an absolute majority of States Parties constitutes the quorum for voting;
(b) decisions on matters of procedure shall be taken by a simple majority of States Parties present and voting. 8. A State Party which is in arrears in the payment of its financial contributions towards the costs of the Court
shall have no vote in the Assembly and in the Bureau if the amount of its arrears equals or exceeds the amount
of the contributions due from it for the preceding two full years. The Assembly may, nevertheless, permit such a
State Party to vote in the Assembly and in the Bureau if it is satisfied that the failure to pay is due to conditions
beyond the control of the State Party. 9. The Assembly shall adopt its own rules of procedure. 10. The official and working languages of the Assembly shall be those of the General Assembly of the United
Nations.

adopt its own rules of procedure. 10. The official and working languages of the Assembly shall be those of the General Assembly of the United
Nations.

Part 12 – FINANCING
Article 113 – Financial Regulations
Except as otherwise specifically provided, all financial matters related to the Court and the meetings of the
Assembly of States Parties, including its Bureau and subsidiary bodies, shall be governed by this Statute and the
Financial Regulations and Rules adopted by the Assembly of States Parties. Article 114 – Payment of expenses
Expenses of the Court and the Assembly of States Parties, including its Bureau and subsidiary bodies, shall be
paid from the funds of the Court. Article 115 – Funds of the Court and of the Assembly of States Parties
The expenses of the Court and the Assembly of States Parties, including its Bureau and subsidiary bodies, as
provided for in the budget decided by the Assembly of States Parties, shall be provided by the following sources—
(a) assessed contributions made by States Parties;
(b) funds provided by the United Nations, subject to the approval of the General Assembly, in particular in
relation to the expenses incurred due to referrals by the Security Council.

Nations, subject to the approval of the General Assembly, in particular in
relation to the expenses incurred due to referrals by the Security Council.

Article 116 – Voluntary contributions
Without prejudice to article 115, the Court may receive and utilize, as additional funds, voluntary contributions
from Governments, international organizations, individuals, corporations and other entities, in accordance with
relevant criteria adopted by the Assembly of States Parties. Article 117 – Assessment of contributions
The contributions of States Parties shall be assessed in accordance with an agreed scale of assessment, based on
the scale adopted by the United Nations for its regular budget and adjusted in accordance with the principles on
which that scale is based. Article 118 – Annual audit
The records, books and accounts of the Court, including its annual financial statements, shall be audited annually
by an independent auditor. 118

udit
The records, books and accounts of the Court, including its annual financial statements, shall be audited annually
by an independent auditor. 118

International Crimes Act (Cap. 60) Kenya
Part 13 – FINAL CLAUSES
Article 119 – Settlement of disputes
Each State Party shall have one vote. Every effort shall be made to reach decisions by consensus in the Assembly
and in the Bureau. If consensus cannot be reached, except as otherwise provided in the Statute—
1. Any dispute concerning the judicial functions of the Court shall be settled by the decision of the Court. 2. Any other dispute between two or more States Parties relating to the interpretation or application of this
Statute which is not settled through negotiations within three months of their commencement shall be
referred to the Assembly of States Parties. The Assembly may itself seek to settle the dispute or may make
recommendations on further means of settlement of the dispute, including referral to the International Court of
Justice in conformity with the Statute of that Court. Article 120 – Reservations
No reservations may be made to this Statute. Article 121 – Amendments
1. After the expiry of seven years from the entry into force of this Statute, any State Party may propose
amendments thereto.

Article 121 – Amendments
1. After the expiry of seven years from the entry into force of this Statute, any State Party may propose
amendments thereto.

The text of any proposed amendment shall be submitted to the Secretary-General of the
United Nations, who shall promptly circulate it to all States Parties. 2. No sooner than three months from the date of notification, the Assembly of States Parties, at its next meeting,
shall, by a majority of those present and voting, decide whether to take up the proposal. The Assembly may deal
with the proposal directly or convene a Review Conference if the issue involved so warrants. 3. The adoption of an amendment at a meeting of the Assembly of States Parties or at a Review Conference on
which consensus cannot be reached shall require a two-thirds majority of States Parties. 4. Except as provided in paragraph 5, an amendment shall enter into force for all States Parties one year after
instruments of ratification or acceptance have been deposited with the Secretary-General of the United Nations
by seven-eighths of them. 5. Any amendment to articles 5, 6, 7 and 8 of this Statute shall enter into force for those States Parties which
have accepted the amendment one year after the deposit of their instruments of ratification or acceptance.

r into force for those States Parties which
have accepted the amendment one year after the deposit of their instruments of ratification or acceptance.

In
respect of a State Party which has not accepted the amendment, the Court shall not exercise its jurisdiction
regarding a crime covered by the amendment when committed by that State Party’s nationals or on its territory. 6. If an amendment has been accepted by seven-eighths of States Parties in accordance with paragraph 4, any
State Party which has not accepted the amendment may withdraw from this Statute with immediate effect,
notwithstanding article 127, paragraph 1, but subject to article 127, paragraph 2, by giving notice no later than
one year after the entry into force of such amendment. 7. The Secretary-General of the United Nations shall circulate to all States Parties any amendment adopted at a
meeting of the Assembly of States Parties or at a Review Conference. Article 122 – Amendments to provisions of an institutional nature
1.

adopted at a
meeting of the Assembly of States Parties or at a Review Conference. Article 122 – Amendments to provisions of an institutional nature
1.

Amendments to provisions of this Statute which are of an exclusively institutional nature, namely, article
35, article 36, paragraphs 8 and 9, article 37, article 38, article 39, paragraphs 1 (first two sentences), 2 and 4,
article 42, paragraphs 4 to 9, article 43, paragraphs 2 and 3, and articles 44, 46, 47 and 49, may be proposed at any
time, notwithstanding article 121, paragraph 1, by any State Party. The text of any proposed amendment shall
be submitted to the Secretary-General of the United Nations or such other person designated by the Assembly of
States Parties who shall promptly circulate it to all States Parties and to others participating in the Assembly. 119

on designated by the Assembly of
States Parties who shall promptly circulate it to all States Parties and to others participating in the Assembly. 119

International Crimes Act (Cap. 60) Kenya
2. Amendments under this article on which consensus cannot be reached shall be adopted by the Assembly of
States Parties or by a Review Conference, by a two-thirds majority of States Parties. Such amendments shall enter
into force for all States Parties six months after their adoption by the Assembly or, as the case may be, by the
Conference. Article 123 – Review of the Statute
1. Seven years after the entry into force of this Statute the Secretary-General of the United Nations shall convene
a Review Conference to consider any amendments to this Statute. Such review may include, but is not limited to,
the list of crimes contained in article 5. The Conference shall be open to those participating in the Assembly of
States Parties and on the same conditions. 2. At any time thereafter, at the request of a State Party and for the purposes set out in paragraph 1, the
Secretary-General of the United Nations shall, upon approval by a majority of States Parties, convene a Review
Conference. 3.

out in paragraph 1, the
Secretary-General of the United Nations shall, upon approval by a majority of States Parties, convene a Review
Conference. 3.

The provisions of article 121, paragraphs 3 to 7, shall apply to the adoption and entry into force of any
amendment to the Statute considered at a Review Conference. Article 124 – Transitional Provision
Notwithstanding article 12, paragraphs 1 and 2, a State, on becoming a party to this Statute, may declare that,
for a period of seven years after the entry into force of this Statute for the State concerned, it does not accept the
jurisdiction of the Court with respect to the category of crimes referred to in article 8 when a crime is alleged to
have been committed by its nationals or on its territory. A declaration under this article may be withdrawn at
any time. The provisions of this article shall be reviewed at the Review Conference convened in accordance with
article 123, paragraph 1. Article 125 – Signature, ratification, acceptance, approval or accession
1. This Statute shall be open for signature by all States in Rome, at the headquarters of the Food and Agriculture
Organization of the United Nations, on 17 July 1998. Thereafter, it shall remain open for signature in Rome at
the Ministry of Foreign Affairs of Italy until 17 October 1998.

ed Nations, on 17 July 1998. Thereafter, it shall remain open for signature in Rome at
the Ministry of Foreign Affairs of Italy until 17 October 1998.

After that date, the Statute shall remain open for
signature in New York, at United Nations Headquarters, until 31 December 2000. 2. This Statute is subject to ratification, acceptance or approval by signatory States. Instruments of ratification, acceptance or approval shall be deposited with the Secretary-General of the United
Nations. 3. This Statute shall be open to accession by all States. Instruments of accession shall be deposited with the
Secretary-General of the United Nations. Article 126 – Entry into force
1. This Statute shall enter into force on the first day of the month after the 60th day following the date of the
deposit of the 60th instrument of ratification, acceptance, approval or accession with the Secretary-General of
the United Nations. 2. For each State ratifying, accepting, approving or acceding to this Statute after the deposit of the 60th
instrument of ratification, acceptance, approval or accession, the Statute shall enter into force on the first day
of the month after the 60th day following the deposit by such State of its instrument of ratification, acceptance,
approval or accession. 120

irst day
of the month after the 60th day following the deposit by such State of its instrument of ratification, acceptance,
approval or accession. 120

International Crimes Act (Cap. 60) Kenya
Article 127 – Withdrawal
1. A State Party may, by written notification addressed to the Secretary-General of the United Nations, withdraw
from this Statute. The withdrawal shall take effect one year after the date of receipt of the notification, unless the
notification specifies a later date. 2. A State shall not be discharged, by reason of its withdrawal, from the obligations arising from this Statute
while it was a Party to the Statute, including any financial obligations which may have accrued. Its withdrawal
shall not affect any cooperation with the Court in connection with criminal investigations and proceedings in
relation to which the withdrawing State had a duty to cooperate and which were commenced prior to the date
on which the withdrawal became effective, nor shall it prejudice in any way the continued consideration of any
matter which was already under consideration by the Court prior to the date on which the withdrawal became
effective.

e continued consideration of any
matter which was already under consideration by the Court prior to the date on which the withdrawal became
effective.

Article 128 – Authentic texts
The original of this Statute, of which the Arabic, Chinese, English, French, Russian and Spanish texts are equally
authentic, shall be deposited with the Secretary-General of the United Nations, who shall send certified copies
thereof to all States. IN WITNESS WHEREOF, the undersigned, being duly authorized thereto by their respective Governments, have
signed this Statute. DONE at Rome, this 17th day of July 1998. SECOND SCHEDULE [s. 107]
WARRANTS AND ORDERS IN RESPECT OF PROPERTY
Part A – PRELIMINARY
1. Definitions In this Schedule—
"financial institution" means—
(a) a bank or credit union; or
(b) an institution prescribed by rules made under this Act. "ICC property request" means a request referred to in paragraph 2 of this Schedule;
"production order" means an order under Part D of this Schedule;
"property" includes proceeds and assets;
"restraining order" means an order under Part C of this Schedule. 2.

an order under Part D of this Schedule;
"property" includes proceeds and assets;
"restraining order" means an order under Part C of this Schedule. 2.

Application of this Schedule This Schedule applies where the ICC has made a request for assistance under
paragraph 1(k) of article 93 of the Rome Statute for or with respect to identifying, tracing and freezing,
or seizing, any property which is or may be liable to forfeiture under paragraph 2(b) of article 77 of that
Statute. 121

ifying, tracing and freezing,
or seizing, any property which is or may be liable to forfeiture under paragraph 2(b) of article 77 of that
Statute. 121

International Crimes Act (Cap. 60) Kenya
Part B – SEARCH WARRANTS
3. Issue of warrant
(1) Where authorised under this Act by the Attorney-General to do so, a member of the National
Police Service may apply to a magistrate for the issue of a search warrant under this Part if he has
reasonable grounds for believing that there is, or that within 72 hours there will be, in or on any
premises any property of a particular kind which is the subject of an ICC property request. (2) The magistrate to whom the application is made may, if satisfied that there are reasonable grounds
for doing so, issue a search warrant authorising any member of the National Police Service—
(a) to enter the premises; and
(b) to search the premises for property of the kind mentioned in sub-paragraph (1). (3) There shall be set out in a warrant issued under this Part—
(a) a statement of the purpose for which the warrant is issued, which shall include a reference to
the nature of the relevant international crime; and
(b) a description of the kind of property authorised to be seized. (4) The provisions of sections 119, 120 and 122 of the Criminal Procedure Code (Cap.

b) a description of the kind of property authorised to be seized. (4) The provisions of sections 119, 120 and 122 of the Criminal Procedure Code (Cap.

75) shall apply,
with any necessary modifications, to a warrant under this Part. 4. Seizure of property pursuant to warrant
(1) A member of the National Police Service executing a search warrant issued under this Part may
seize property of the kind specified in the warrant. (2) If, in the course of searching, in accordance with a warrant issued under this Part, for property
that is the subject of an ICC property request, being property of a kind specified in the warrant, a
member of the National Police Service—
(a) finds any property that the member believes on reasonable grounds to be property directly or
indirectly derived from the relevant international crime, although not of a kind specified in
the warrant; and
(b) believes on reasonable grounds that it is necessary to seize that property in order to prevent
its concealment, loss or destruction, the warrant shall be deemed to authorise the member to
seize that property. (3) The power conferred by this paragraph to seize a thing includes—
(a) a power to remove the thing from the premises where it is found; and
(b) a power to guard the thing in or on those premises. 5.

a thing includes—
(a) a power to remove the thing from the premises where it is found; and
(b) a power to guard the thing in or on those premises. 5.

Inspector-General of Police responsible for seized property If property is seized pursuant to a warrant
issued under this Part, the Inspector-General of Police shall arrange for the property to be kept until it is
dealt with in accordance with this Act, and shall ensure that all reasonable steps are taken to preserve the
property while it is so kept. 6. Return of seized property Where—
(a) property has been seized pursuant to a warrant issued under this Part; and
(b) the ICC has declined to make a forfeiture order in respect of the property in relation to the relevant
international crime, or has not done so within a period of six months after the property was seized,
the Inspector-General of Police shall cause the property to be returned to the person from whose
possession it was seized. 122

he property was seized,
the Inspector-General of Police shall cause the property to be returned to the person from whose
possession it was seized. 122

International Crimes Act (Cap. 60) Kenya
7. Obstruction of execution of warrant A person who, without reasonable excuse, obstructs or hinders a
person executing a search warrant issued under this Part is guilty of an offence and liable on conviction to
imprisonment for a term not exceeding two years. Part C – RESTRAINING ORDERS
8. (1) In this paragraph, "the offender" means the person whose property is the subject of an ICC property
request. (2) Where authorised under this Act by the Attorney-General to do so, a member of the National Police
Service may apply ex parte to the High Court for an order in respect of—
(a) specified property of the offender;
(b) all the property of the offender (including property acquired after the making of the order);
(c) specified property of the offender and all other property of the offender (including property
acquired after the making of the order);
(d) all the property of the offender (including property acquired after the making of the order)
other than specified property; or
(e) specified property of a person other than the offender.

cluding property acquired after the making of the order)
other than specified property; or
(e) specified property of a person other than the offender.

(3) Where the application is supported by evidence from the Attorney-General that an order under this
paragraph is necessary to comply with an ICC property request, the High Court may, by order—
(a) direct that the property, or such part of the property as is specified in the order, is not to be
disposed of, or otherwise dealt with, by the defendant or by any other person, except in such
manner and in such circumstances (if any) as are specified in the order; and
(b) if the Court considers that the circumstances so require, direct the Public Trustee to take
control of the property, or such part of the property as is specified in the order. (4) A restraining order may be made subject to such conditions as the High Court thinks fit.

r such part of the property as is specified in the order. (4) A restraining order may be made subject to such conditions as the High Court thinks fit.

(5) Without limiting the generality of sub-paragraph (3), a restraining order may make provision for
meeting out of the property, or a specified part of the property, to which the order applies all or any
of the following—
(a) the defendant’s reasonable living expenses (including the reasonable living expenses of the
defendant’s dependants, if any) and reasonable business expenses;
(b) the defendant’s reasonable expenses in defending any charge that he has committed an
international crime. (6) The High Court shall not make an order in respect of property of a person other than the offender
unless it is satisfied that the property concerned, although not property of the offender, is
effectively under the offender’s control. 9.

he offender
unless it is satisfied that the property concerned, although not property of the offender, is
effectively under the offender’s control. 9.

Notice of applications and orders
(1) Where an application has been made to the High Court for a restraining order in respect of property
—
(a) the Court may, if it thinks fit, require the officer making the application to give notice of the
application to a person who the Court has reason to believe has an interest in the property or
part of the property; and
(b) a person to whom the Court requires notice to be given under paragraph (a) is entitled to
appear and to adduce evidence at the hearing of the application. 123

to whom the Court requires notice to be given under paragraph (a) is entitled to
appear and to adduce evidence at the hearing of the application. 123

International Crimes Act (Cap. 60) Kenya
(2) Where—
(a) a restraining order has been made in respect of a person’s property; and
(b) the person was not notified of the application for the making of the restraining order, the
officer who made the application shall give notice to the person, as prescribed by rules made
under this Act, of the making of the order. 10.

der, the
officer who made the application shall give notice to the person, as prescribed by rules made
under this Act, of the making of the order. 10.

Court may make further orders
(1) If the High Court makes a restraining order, the Court may, at the time when it makes the
restraining order or at any later time, make any ancillary orders that the Court considers
appropriate, including any one or more of the following orders—
(a) an order varying the restraining order in respect of the property to which it relates;
(b) an order varying any condition to which the restraining order was subject;
(c) an order for the examination on oath of—
(i) a person (in this paragraph called the owner) whose property is subject to the
restraining order; or
(ii) another person, before the Court, or before an officer of the Court prescribed by rules
made under this Act, concerning the affairs of the owner, including the nature and
location of any property of the owner;
(d) if the restraining order directs the Public Trustee to take control of property—
(i) an order regulating the manner in which the Public Trustee may exercise his functions
under the restraining order; or
(ii) an order determining any question relating to the property to which the restraining
order relates, including any question relating to the liabilities of the owner, or the
exercise of the functions of the Public Trustee, with respect to the property;
(iii) an order directing the owner (or, if the owner is a body corporate, a director of the
body corporate specified by the Court) to furnish to the Public Trustee, within a period
specified in the order, a statement, verified by the oath or affirmation of the person
making the statement, setting out such particulars of the property, or dealings with
the property, of the owner as the Court thinks proper.

the person
making the statement, setting out such particulars of the property, or dealings with
the property, of the owner as the Court thinks proper.

(2) Without affecting the generality of sub-paragraph (1), where the High Court makes, or has made,
a restraining order, the Court may, at the time it makes the restraining order or at any later time,
whether on application made to it or on its own motion, make an order authorising another court—
(a) to make an order setting aside the restraining order in respect of the whole or a part of the
property; or
(b) to make other orders in relation to the operation of the restraining order, to the extent and
in the circumstances specified in the order of the Court. (3) An order under sub-paragraph (1) or (2) may be made on application—
(a) by an appropriate officer;
(b) by the owner;
(c) where the restraining order directed the Public Trustee to take control of property—by the
Public Trustee; or
(d) with the leave of the High Court—by any other person. (4) Where a person is examined before the High Court or an officer of the High Court pursuant to
an order under sub-paragraph (1), the person is not excused from answering a question when
124

High Court or an officer of the High Court pursuant to
an order under sub-paragraph (1), the person is not excused from answering a question when
124

International Crimes Act (Cap. 60) Kenya
required to do so by the Court or officer on the ground that the answer to the question might tend
to incriminate the person or make the person liable to a forfeiture or penalty. (5) Where a person is examined before the High Court or an officer of the High Court pursuant to
an order under sub-paragraph (1), a statement or disclosure made by the person in answer to a
question put in the course of the examination, and any information, document or thing obtained as
a direct or indirect consequence of the statement or disclosure, is not admissible against the person
in any civil or criminal proceedings in Kenya, other than proceedings in respect of the giving of
false testimony in the course of the examination. (6) A person directed by an order under sub-paragraph (1) to furnish a statement to the Public Trustee
is not excused from furnishing the statement, or setting out particulars in the statement, on the
ground that the statement or particulars might tend to incriminate the person or make the person
liable to a forfeiture or penalty.

statement, on the
ground that the statement or particulars might tend to incriminate the person or make the person
liable to a forfeiture or penalty.

(7) If a person furnishes a statement to the Public Trustee under an order made under sub-paragraph
(1), neither the statement nor any information, document or thing obtained as a direct or indirect
consequence of the statement, is admissible against the person in any criminal proceedings in
Kenya, other than proceedings in respect of the falsity of the statement. 11. Registration of restraining orders
(1) If a restraining order applies to property of a particular kind and the provisions of any law of the
Republic provide for the registration of title to, or charges over, property of that kind, the authority
responsible for administering those provisions shall, on application by an appropriate officer,
record on the register kept under those provisions the particulars of the restraining order. (2) If the particulars of a restraining order are so recorded, a person who subsequently deals with the
property shall, for the purposes of paragraph 12, be deemed to have notice of the restraining order. 12.

ded, a person who subsequently deals with the
property shall, for the purposes of paragraph 12, be deemed to have notice of the restraining order. 12.

Contravention of restraining orders
(1) A person who knowingly contravenes a restraining order by disposing of, or otherwise dealing with,
property that is subject to the restraining order is guilty of an offence and liable, on conviction, to
a fine equivalent to the value of the property (as determined by the High Court) or to imprisonment
for a period not exceeding two years, or both. (2) Where—
(a) a restraining order is made against property;
(b) the property is disposed of, or otherwise dealt with, in contravention of the restraining
order; and
(c) the disposition or dealing was either not for sufficient consideration or not in favour of a
person who acted in good faith, an appropriate officer may apply to the High Court for an
order that the disposition or dealing be set aside.

our of a
person who acted in good faith, an appropriate officer may apply to the High Court for an
order that the disposition or dealing be set aside.

(3) If an application is made under sub-paragraph (2) in relation to a disposition or dealing, the Court
may make an order—
(a) setting aside the disposition or dealing as from the day on which the disposition or dealing
took place; or
(b) setting aside the disposition or dealing as from the day of the order under this sub-paragraph
and declaring the respective rights of any persons who acquired interests in the property
on or after the day on which the disposition or dealing took place and before the day of the
order. 13. Obstruction of Public Trustee
(1) A person who hinders or obstructs the Public Trustee in the performance of the Public Trustee’s
obligations under a restraining order is guilty of an offence and liable on conviction to a fine not
125

ee in the performance of the Public Trustee’s
obligations under a restraining order is guilty of an offence and liable on conviction to a fine not
125

International Crimes Act (Cap. 60) Kenya
exceeding one hundred thousand shillings or imprisonment for a term not exceeding six months, or
both. (2) In this paragraph, "Public Trustee" includes any deputies, officers, employees and agents of the
Public Trustee. 14. Protection of Public Trustee from liability in certain cases
(1) No matter or thing done or omitted by the Public Trustee shall, if the matter or thing was done or
omitted in good faith in the exercise or purported exercise of his functions under this Schedule,
subject him to any liability, claim, suit or demand whatsoever. (2) The Public Trustee is not personally liable for any rates, land tax or municipal or other statutory
charges imposed by or under a law of the Republic on or in respect of property of which the Public
Trustee has been directed by a restraining order to take control, being rates, land tax or municipal
or other statutory charges that fall due on or after the date of the restraining order, except to the
extent (if any) of the rents and profits received by the Public Trustee in respect of that property on
or after the date of the restraining order.

the
extent (if any) of the rents and profits received by the Public Trustee in respect of that property on
or after the date of the restraining order.

(3) In this paragraph, "Public Trustee" includes any deputies, officers, employees and agents of the
Public Trustee. 15. Fees payable to Public Trustee If the Public Trustee takes control of property in accordance with a
restraining order, the Public Trustee is entitled to receive such fees, in respect of the exercise of his
functions in relation to the property, as may be prescribed by rules made under this Act. 16. Certificate by Public Trustee If a restraining order is made directing the Public Trustee to take control of
property, a certificate under the hand of the Public Trustee—
(a) certifying that the restraining order has been made and is in force; and
(b) stating the terms of the restraining order, shall be accepted by all courts, officers and other persons,
whether acting under any Act or not, as evidence of the matters so certified and stated and of the
Public Trustee’s right to act under the restraining order, without production of any other proof. Part D – PRODUCTION ORDERS
17.

and stated and of the
Public Trustee’s right to act under the restraining order, without production of any other proof. Part D – PRODUCTION ORDERS
17.

Applications for production orders
(1) Where authorised under this Act by the Attorney-General to do so, a member of the National Police
Service may apply to the High Court for a production order against a person reasonably suspected
of having possession or control of any documents relating to property that is the subject of an ICC
property request. (2) Where the application is supported by evidence from the Attorney-General that an order under
this paragraph is necessary to comply with an ICC property request, the High Court may, by order,
require the person—
(a) to produce to a specified police officer any documents of a specified class or description that
are in the person’s possession or control; or
(b) to make available to a specified police officer, for inspection, any documents of a specified
class or description that are in the person’s possession or control. (3) An order under sub-paragraph (1)(a) shall not be made in respect of bankers’ books. (4) In sub-paragraph (3), "bankers’ books" means any accounting records used in the ordinary business
of banking, and includes ledgers, day-books, cash-books and account books. 126

kers’ books" means any accounting records used in the ordinary business
of banking, and includes ledgers, day-books, cash-books and account books. 126

International Crimes Act (Cap. 60) Kenya
18. Form of production order
(1) A production order that a person produce a document or documents to an officer shall specify the
time when and the place where the document is or documents are to be produced. (2) A production order that a person make a document available to an officer for inspection shall
specify the time or times when the document is or documents are to be made available. 19. Powers under production orders
(1) If a document is produced to an officer under a production order, the authorised officer may do any
one or more of the following—
(a) inspect the document;
(b) take extracts from the document;
(c) make copies of the document;
(d) retain the document if, and for so long as, retention of the document is reasonably necessary
for the purposes of this Act. (2) If a document is made available to an officer for inspection under a production order, the authorised
officer may do any one or more of the following—
(a) inspect the document;
(b) take extracts from the document;
(c) make copies of the document.

rised
officer may do any one or more of the following—
(a) inspect the document;
(b) take extracts from the document;
(c) make copies of the document.

(3) If an officer retains a document under a production order, the officer shall, on request by the person
to whom the order was addressed—
(a) give the person a copy of the document certified by the officer in writing to be a true copy of
the document; and
(b) unless the person has been given a copy of the document under paragraph (a), permit the
person to do any one or more of the following —
(i) inspect the document;
(ii) take extracts from the document;
(iii) make copies of the document. 20. Effect for production orders on proceedings, etc. (1) A person is not excused from producing or making available a document when required to do so by
a production order on the ground that—
(a) the production or making available of the document might tend to incriminate the person or
make the person liable to a penalty; or
(b) the production or making available of the document would be in breach of an obligation
(whether imposed by enactment or otherwise) of the person not to disclose the existence or
contents of the document.

uld be in breach of an obligation
(whether imposed by enactment or otherwise) of the person not to disclose the existence or
contents of the document.

(2) If a person produces or makes available a document under a production order, neither the
production or making available of the document; nor any information, document or thing obtained
as a direct or indirect consequence of the production or making available of the document, is
admissible against the person in any criminal proceedings in Kenya, other than proceedings for an
offence under this Part. (3) For the purposes of sub-paragraph (2), proceedings on an application under this Schedule are not
criminal proceedings. 127

ffence under this Part. (3) For the purposes of sub-paragraph (2), proceedings on an application under this Schedule are not
criminal proceedings. 127

International Crimes Act (Cap. 60) Kenya
21. Variation of production order Where the High Court makes a production order requiring a person to
produce a document to an officer, the person may apply to the Court for a variation of the order and, if the
Court is satisfied that the document is essential to the business activities of the applicant, the Court may
vary the production order so that it requires the applicant to make the document available to an officer for
inspection. 22.

applicant, the Court may
vary the production order so that it requires the applicant to make the document available to an officer for
inspection. 22.

Failure to comply with production order
(1) Where a person is required by a production order to produce a document to an officer or to make a
document available to an officer for inspection, the person is guilty of an offence if the person—
(a) contravenes the order without reasonable excuse; or
(b) in purported compliance with the order, produces or makes available a document known to
the person to be false or misleading in a material particular without—
(i) indicating to the officer to whom the document is produced or made available that the
document is false or misleading and the particulars in which the document is false or
misleading; and
(ii) providing correct information to the officer if the person is in possession of, or can
reasonably acquire, the correct information. (2) A person who is guilty of an offence under this paragraph is liable on conviction to a fine not
exceeding one hundred thousand shillings or to imprisonment for a term not exceeding two years,
or both. Part E – MONITORING ORDERS
23.

to a fine not
exceeding one hundred thousand shillings or to imprisonment for a term not exceeding two years,
or both. Part E – MONITORING ORDERS
23.

Making of monitoring order
(1) Where authorised under this Act by the Attorney-General to do so, a member of the National Police
Service may apply to the High Court for an order directing a financial institution to give information
of the kind referred to in sub-paragraph (2) to an appropriate Kenyan authority. (2) Where the application is supported by evidence from the Attorney-General that an order under this
paragraph is necessary to comply with an ICC property request, the High Court may by order direct
a financial institution to give information obtained by the institution about transactions conducted
through an account held by a particular person with the institution. (3) A monitoring order shall apply in relation to transactions conducted during the period specified in
the order, being a period commencing not earlier than the day on which notice of the order is given
to the financial institution and ending not later than three months after the date of the order.

er than the day on which notice of the order is given
to the financial institution and ending not later than three months after the date of the order.

(4) A reference in this paragraph to a transaction conducted through an account includes a reference to
—
(a) the making of a fixed term deposit; and
(b) in relation to a fixed term deposit—the transfer of the amount deposited, or any part of it, at
the end of the term. 24. Form of monitoring order
(1) A monitoring order shall specify—
(a) the name or names in which the account is believed to be held;
(b) the kind of information that the institution is required to give;
(c) the Kenyan authority to which the information is to be given; and
(d) the manner in which the information is to be given. 128

is required to give;
(c) the Kenyan authority to which the information is to be given; and
(d) the manner in which the information is to be given. 128

International Crimes Act (Cap. 60) Kenya
(2) A financial institution that has been given notice of a monitoring order and which knowingly—
(a) contravenes the order; or
(b) provides false or misleading information in purported compliance with the order, is guilty of
an offence and liable on conviction to a fine not exceeding five hundred thousand shillings. 25. Confidentiality of monitoring order
(1) A financial institution that is, or has been, subject to a monitoring order shall not disclose the
existence or the operation of the order to any person (including the person to whom the order
relates) except—
(a) if the order specifies the Inspector-General of Police as the appropriate Kenyan authority
to which information is to be given—the Inspector-General of Police or a member of the
National Police Service;
(b) if the order specifies some other Kenyan authority as the authority to which information is to
be given—a member, or member of staff, of the authority;
(c) an officer or agent of the institution, for the purpose of ensuring that the order is complied
with; or
(d) an advocate, for the purpose of obtaining legal advice or representation in relation to the
order.

of ensuring that the order is complied
with; or
(d) an advocate, for the purpose of obtaining legal advice or representation in relation to the
order.

(2) A person of a kind referred to in sub-paragraph (1)(a), (b), (c) or (d) to whom the existence or
operation of a monitoring order has been disclosed (whether in accordance with sub-paragraph (1)
or a previous application of this sub-paragraph or otherwise) shall not—
(a) while he is such a person—disclose the existence or operation of the order, except to another
person of a kind referred to in sub-paragraph (1) (a), (b), (c) or (d) for the purpose of—
(i) the performance of that person’s duties, if the disclosure is made by a person referred
to in sub-paragraph (1)(a) or (b);
(ii) ensuring that the order is complied with or obtaining legal advice or representation in
relation to the order, if the disclosure is made by an officer or agent of the institution;
or
(iii) giving legal advice, or making representations, in relation to the order, if the
disclosure is made by an advocate; or
(b) when he or she is no longer such a person—make a record of, or disclose, the existence or the
operation of the order in any circumstances.

ate; or
(b) when he or she is no longer such a person—make a record of, or disclose, the existence or the
operation of the order in any circumstances.

(3) Nothing in sub-paragraph (2) prevents the disclosure by a person of a kind referred to in sub-
paragraph (1)(a) or (b) of the existence or operation of a monitoring order—
(a) for the purposes of, or in connection with, legal proceedings; or
(b) in the course of proceedings before a court. (4) A person of a kind referred to in sub-paragraph (1)(a) or (b) shall not be required to disclose to any
court the existence or operation of a monitoring order. (5) A reference in this paragraph to disclosing the existence or operation of a monitoring order to a
person includes a reference to disclosing information to the person from which the person could
reasonably be expected to infer the existence or operation of the monitoring order. 129

sclosing information to the person from which the person could
reasonably be expected to infer the existence or operation of the monitoring order. 129

International Crimes Act (Cap. 60) Kenya
26. Communication of information by financial institutions to prescribed authorities
(1) If a financial institution has information about an account held with the institution and the
institution has reasonable grounds for believing that—
(a) the information may be relevant to an investigation of, or the prosecution of a person for, an
international crime; or
(b) the information would otherwise be of assistance in the enforcement of this Act or any rules
made under this Act, the institution may give the information to a prescribed authority.
(2) No action, claim, suit or demand may be brought against a financial institution, or any officer,
employee or agent of the institution acting in the course of his employment or agency, in relation to
any action taken by or on behalf of the institution or person pursuant to sub-paragraph (1).
130