TREATIES AND OTHER INTERNATIONAL ACTS SERIES 17-1006

________________________________________________________________________

LAW ENFORCEMENT

Customs

Agreement Between the

UNITED STATES OF AMERICA

and KENYA

Signed at Washington August 6, 2014
 NOTE BY THE DEPARTMENT OF STATE

 Pursuant to Public Law 89—497, approved July 8, 1966

(80 Stat. 271; 1 U.S.C. 113)—

“. . .the Treaties and Other International Acts Series issued

under the authority of the Secretary of State shall be competent

evidence . . . of the treaties, international agreements other than

treaties, and proclamations by the President of such treaties and

international agreements other than treaties, as the case may be, 

therein contained, in all the courts of law and equity and of maritime

jurisdiction, and in all the tribunals and public offices of the

United States, and of the several States, without any further proof

or authentication thereof.”
 KENYA

 Law Enforcement: Customs

 Agreement signed at Washington

 August 6, 2014;

 Entered into force October 6, 2017.

 

 
AGREEMENT BETWEEN 


THE GOVERNMENT OF THE UNITED STATES OF AMERICA AND 


THE GOVERNMENT OF THE REPUBLIC OF KENYA 


REGARDING MUTUAL ASSISTANCE 


BETWEEN THEIR CUSTOMS ADMlNJSTRATIONS 


PREAMBLE 

111e Government of the United States of America and the Government of the Republic ofKenya 

hereinafter refcn-ed to as "the Contracting Parties"; 

Considering that offences against customs laws arc prejudicial to the economic, fiscal, commercial, 

social, health and cultural interests of their respective countries; 

Considering the importance ofassuring the accurate assessment ofcustoms dutiei; and other taxes; 

Recognizing the need for international cooperation in matters relating to the administration and 

enforcement ofthe customs laws oftheir respective countries; 

Having regard to the international conventions.. including those containing prohibitions, 

restrictions and special measures ofcontrol in respect ofspecific goods; 

Convinced that action against customs offences can be made more effe<.-tive by close cooperation 

between their Customs Administrations based upon the mutually agreed terms set forth herein; and 

Having regard to the Recommendation of the Customs Cooperation Council on Mutual 

Administrative Assistance of December 5. 1953; 

Have agreed as follows: 
ARTJCLE 1 

DEFINTTlONS 

For the purposes ofthe present Agreement: 

1. 	 the term "Customs Administration" means, in the United States ofAmerica. 

United States Customs and Border Protection and United States Immigration and 

Customs Enforcement, Department ofHomeland Security, and in the Republic of 

Kenya, the Customs Services Department ofthe Kenya Revenue Authority. 

2. 	 the term "customs laws" means the laws and regulations enforced by the Customs 

Administrations particularly those concerning the importation. exportation, 

transit, storage or circulation of goods as they relate to customs duties, charges, 

and other taxes or to prohibitions, restrictions, and other similar controls 

respecting the movement of controlled items across national boundaries; 

3. 	 the term "information" means data in any form, documents, records, and reports 

or certified copies thereof; 

4. 	 the tenn "offence" means any violation or attempted violation of the custom:; 

laws; 

5. 	 the term "person" means any natural or legal person; 

6. 	 the term "'property" means assets of every kind, whether corporeal or incorporeal, 

moveable or immovable, tangible or intangible, and legal documents or 

instruments evidencing title to or an interest in such a<>sets; 

7. 	 the tenn "provisional measures" includes "seizure" or "freezing," which means 

a. 	 temporarily prohibiting the conversion, disposition, movement. or 

transfer ofproperty, or 

b. 	 temporarily assuming custody or control ofproperty on the basis of 

an order issued by a court or competent authority, or other means; 

8. 	 the term "forfeiture" means the deprivation ofproperty by order of a court or 


competent authority and includes confiscation where applicable; 


9. 	 the term "requesting Administration" means the Customs Administration that 

requests assistance; 

10. 	 the term "requested Administration" means the Customs Administration from 


which assistance is requested; 

l 1. 	 the term "requested Contracting Party" shall mean the Contracting Party whose 

Custom Administration is requested to provide assistance; 

12. 	 the tcnn '"requesting Contracting Party" shall mean the Contracting Party whose 

Custom Administration requests assistance. 
ARTICLE2 

SCOPE OF AGREEMENT 

l. 	 The Contracting Parties, through their Customs Administrations. shall provide 

each other with assistance under the terms set out in this Agreement, in 

preventing. investigating. and repressing any offence. 

2. 	 Each Customs Administration shall execute requests for assistance made pursuant 

to this Agreement in accordance with and subject to the limitations ofits domestic 

law and regulations. and within the limits ofits competence and available 

resources. 

3. 	 This Agreement is intended solely for mutual assistance between the Contracting 

Parties; the provisions ofthis Agreement shall not give rise to a right on the part 

of any private person to obtain, suppress, or exclude any evidence, or to impede 

the execution ofa request. 

4. 	 This Agreement covers mutual customs assistance between the Contracting 

Parties and is not intended to have an impact on other agreements and practi.;es 

relating to mutual a.<;sistance and cooperation in effect between the Contracting 

Parties. 
ARTTCLE3 

SCOPE OF GENERAL ASSISTA.~CE 

1. 	 Upon request, a Customs Administration shall provide assistance in the form of 

information in order to ensure the enforcement ofthe customs laws and the 

accurate assessment ofcustoms duties and other truces by the Customs 

Administrations. 

2. 	 Upon request or upon its own initiative, a Customs Administration may provide 

assistance in the form ofinformation, including but not limited to information 

concerning: 

a. 	 methods and techniques of processing passengers and cargo; 

b. 	 the successful application of enforcement aids and techniques; 

c. 	 en forcemcnt actions that might be useful to suppress offences and. in 

particular, special means of combating offences; 

d. 	 new trends, means and methods used in committing offences; 

e. 	 goods known to be the subject of offences, as well as transport and storage 

methods used in respect ofthose goods; 

f. 	 persons known to have committed an offence or suspected of being about 

to commit an offence; and 

g. 	 any other data that could assist the Customs Administrations with risk 

assessment for control and facilitation purposes. 

J. 	 The Customs Administrations shall cooperate in: 

a. 	 establishing and maintaining channels of communication to facilitate the 

secure and rapid exchange of information; 

b. 	 facilitating effective coordination; 

c. 	 the consideration and testing of new equipment or procedures: and 

d. 	 any other general administrative matters that may from time to time 

require their joint action. 

4. 	 The requested Administration shall, in making enquiries in its national territory on 

behalf ofthe requesting Administration. use all reasonable means available to 

provide the requested assistance. 
ARTICLE4 

SCOPE OJ:' SPEClfJC ASSISTANCE 

1. 	 Upon request, the Customs Administrations shall inform each other whether 

goods exported from the territory ofone Contracting Party have been lawfully 

imported into I.he territory of the other Contracting Party. Ifrequested, the 

information shall contain the customs procedure used for clearing the goods. 

2. 	 Upon request, a Customs Administration shall exercise special surveillance of: 

a. 	 persons knov.n to the requesting Contracting Party to have committed an 

oftence or suspected ofdoing so, particularly those moving into and out 

of its territory; 

b. 	 goods either in transport or in storage identified by the requesting 

Contracting Party as giving rise to suspected illicit traffic toward or 

through its territory; and 

c. 	 means oftransport known to have been used or suspected ofbeing used in 

offences v,'ithin the territory of the requesting Contracting Party. 

3. 	 Upon request, the Customs Administrations shall furnish to each other 

information regarding activities that may result in offences v.ithin the territory of 

the other Contracting Party. In situations that could involve substantial damage to 

the economy. public health, public security, environment or similar vital interest 

of the other Contracting Party. the Customs Administrations. wherever possible. 

shall supply such information without being requested to do so. Nothing in this 

Agreement otherwise precludes the Customs Administrations from providing on 

their own initiative infonnation regarding activities that may result in offences 

within the territory ofthe other Contracting Party. 

4. 	 The Contracting Parties may provide assistance through the use ofprovisional 

measures and forfeiture. and in proceedings involving property subject to 

provisional measures or forfoiture. 

5. 	 The Contracting Parties may. consistent with this Agreement and with any other 


agreements between them pertaining to the sharing and disposition of forfeited 


assets: 


a. 	 dispose of property, proceeds, and instrumentalities forfeited as a result of 

assistance provided ui1der this Agreement in accordance with the domestic 

law ofthe Contracting Party in control ofthe property, proceeds, and 

instrumentalities; and 
b. 	 to the extent pcm1itted by their respective domestic laws, and without 

regard to the requirement of reciprocity, transfer forfeited property, 

proceeds, or instrumentalities, or the proceeds oftheir sale. to the other 

Contracting Party upon such terms as may be agreed. 
ARTICLES 

HLES AND DOCUMENTS 

1. 	 Upon request, the Customs Administrations shall provide information relating to 

transportation and shipment of goods showing value, destination, and disposition 

ofthose goods. 

2. 	 A requesting Administration may request original files, documents, and other 

materials only where copies would be insufficient. Upon request, the requested 

Administration shall provide properly certified copies ofsuch files, documents, 

and other materials. 

3. 	 lJnless the requesting Administration specifically requests originals or copies, the 

requested Administration may transmit computer-based information in any form. 

The requested Administration shall supply all information relevant for 

interpreting or utilizing computer-ba<;ed information at the same time. 

4. 	 lfthe requested Administration agrees, officials designated by the requesting 

Administration may examine, in the offices ofthe requested Administration, 

information relevant to an offence and make copies thereofor extract information 

therefrom. 

5. 	 Originals offiles, documents, and other materials that have been transmitted shall 

be returned at the earliest opportunity; any rights ofthe requested Contracting 

Party or of third parties relating thereto shall remain unaffected. 

ARTICLE6 

EXPERTS AND WlTNESSES 

1. 	 The requested Administration may authorize its employees to appear as experts or 

witnesses in judicial or administrative proceedings in the territory ofthe other 

Contracting Party and to produce files, documents, or other materials or certified 

copies thereof. 

2. 	 Where a customs official requested to appear as a witness is entitled to diplomatic 

l1f consular immunity, the requested Contracting Party may agree to a waiver of 

immunity under such conditions as it determines to be appropriate. 
ARTICLE 7 

COMMUNICATION OF REQUESTS 

1. 	 Requests fur assistance under this Agreement shall be addressed directly to the 

Customs Administration ofthe requested Contracting Party. Requests shall be 

made in v.'riting and shall be accompanied by any infonnation deemed useful for 

compliance with the request. Where the circumstances so require, requests may be 

made orally. Such requests shall be confirmed in \Vriting as soon as possible, but 

not later than 14 working days from the date ofthe oral request. 

2. 	 Requests made pursuant to paragraph I of this Article shall include the fi:>llowing 

details: 

a. 	 the name ofthe requesting Administration; 

b. 	 the nature ofthe matter or proceedings: 

c. 	 a briefstatement ofthe facts and offences involved; 

d. 	 the reason for the request: 

e. 	 the names and addresses oftbe parties concerned in the matter, or 

proceeding, if knov.n: and 

f. 	 a description ofthe assistance rcqut-"Sted. 
ARTICLES 

EXECUTION OF REQUESTS 

1. 	 The requested Administration shall take all reasonable measures to execute a 

request and shall endeavor to secure any official measure necessary for that 

purpose. 

2. 	 Iftbe requested Administration is not the appropriate agency to execute a request, 

it shall promptly transmit rt to the appropriate agency and so advise the requesting 

Administration. 

3. 	 The requested Administration shall conduct to the fullest extent possible, or 

permit the requesting Administration to conduct. such inspections, verifications, 

fact-finding inquiries, or other investigative steps, including the questioning of 

experts. witnesses, and persons suspected ofhaving committed an offence, as arc 

necessary to execute a request. 

4. 	 Upon request, the requesting Administration shall be advised ofthe time and 

place of action to be taken in execution ofa request. 

5. 	 Upon request, the requested Contracting Party shall authorize., to the fullest extent 

possiblti, officials ofthe requesting Contracting Party to be present in the territory 

ofthe requested Contracting Party to assist in execution of a request. 

a. 	 On \Vritten request. officials designated by the requesting Administration may, 

with the authorization ofthe requested Administration and subject to 

conditions the latter may impose, for the purpose of investigating an offence: 

i. 	 Exanline, in the offices of the requested Administration, documents 

and any other information in respect ofthat offence, and be supplied 

\vith copies thereof; 

ii. 	 Be present during an inquiry conducted by the requested 

Administration in the territory ofthe requested Contracting Party, 

which is relevant to the interests ofthe requesting Administration. 

b. 	 When officials designated by the requesting Administration are present in the 

territory ofthe other Contracting Party under the terms ofthis Agreement, 

they must at all times be able to furnish proof oftheir official identity and 

status. 

c. 	 Officials designated by the requesting Administration to be present in the 

territory ofthe requested Contracting Party, shall have a purely advisory role 

unless otherwise arranged between the Customs Administrations. 
6. 	 The requested Administration shall comply with a request lhat a certain procedure 

be followed to the extent that such procedure is not prohibited by the domestic 

law ofthe requested Contracting Party. 
ARTICLE9 

LIMIT A TIO NS OF USE 

I. 	 lnfonnation obtained um.ler this Agreement shall be afforded the same degree of 

confidentiality by the receiving Contracting Party that it applies to similar 

infonnation in its custody. 

2. 	 Information obtained under this Agreement may only be used or disclosed for the 

purposes specified in this Agreement, including use by the receiving Contracting 

Pany in any proceedings. Such infonnation may be used or disclosed for other 

purposes or by other authorities ofthe receiving Contracting Party ifthe 

supplying Customs Administration has expressly approved such use or disclosure 

in writing. 

3. 	 Information received by either Contracting Party shall upon request ofthe 

supplying Contracting Party, be treated a~ confidential. The reasons for such a 

request shall be stated. 

4. 	 This Article shall not preclude the use or disclosure ofinfom1ation to the extent 

that there is an obligation to do so under the laws, regulations, and policies ofthe 

receiving Contracting Party in connection with a criminal prosecution. The 

receiving Contracting Party shall give advance notice of any such proposed 

disclosure to the supplying Contracting Party. 

5. 	 Nothing in this Agreement is intended to preclude the use or disclosure b; the 

Contracting Party receiving infonnation relating to terrorism where there is an 

obligation to do so under the receiving Contracting Party's applicable laws. 

6. 	 The Customs Administrations shall establish local arrangements to ensure 

appropriate transmission, safekeeping. storage, handling. and internal 

dissemination ofsensitive data, files, and documents. 

7. 	 Information made public in the territory ofthe receiving Contracting Party under 

paragraphs 2 and 4 is no longer subj.ect to the restrictions ofthis Article. 
ARTICLE JO 

EXEMPTIONS 

1. 	 Where a requested Contracting Party determines that granting assistance would 

infringe upon its sovereignty, security, public policy or other substantive national 

interest, or would be inconsistent with its domestic law and regulations, including 

any legal requirement relating to non-compliance v.1th assurances regarding 

limitations on use or confidentiality, it may refuse or withhold assistance. or may 

grant it subject io the satisfaction of certain conditions or requirements. 

2. 	 ff the requesting Administration would be unable to comply if a similar request 

were made by the requested Administration, it shall draw attention to that fact in 

its request. Compliance with such a request shall be at the discretion ofthe 

requested Administration. 

3. 	 The requested Administration may postpone assistance on the grolmd that it will 

interfere with an ongoing investigation, prosecution. or proc¢e<ling. In such 

instance, the requested Administratiou shall consult with the requestiug 

Administration to determine ifassistance can be given subject to Stich terms or 

conditions as the requested Administration may require. 

4. 	 In the event that a request cannot be complied with, the requesting Administration 

shall be promptly notified and provided with a statement ofthe reasons for 

postponement or denial of the request. Circumstances that might be of 

importance for the further pursuit ofthe matter shall also be provided to the 

requesting Administration. 

ARTICLE 11 

l. 	 The Requested Contracting Party shall normally pay all cost-; relating to the 

execution of the request, with the exception of expenses for experts and wimesses 

and the costs oftranslation, interpretation and transcription. 

2. 	 lf during the execution of a request it becomes apparent that completion of the 

execution ofthe request will entail expenses of an extraordinary nature, the 

Customs Administrations shall consult to determine the tenns and conditions 

under which execution may continue. 
ARTICLE 12 

IMPLEMENTATION OF THE AGREEMENT 

I . The Customs Administrations ofthe Contracting Parties shall: 

a. 	 communicate directly for the purpose ofdealing with matters arising out 

ofthis Agreement; 

b. 	 after consultation, issue any administrative directives necessary for the 

implementation ofthis Agreement; and 

c. 	 endeavor by mutual accord to resolve problems or questions arising from 

the interpretation or application of the Agreement. 

2. 	 Conflicts for which no solutions can be foimd \Vill be settled by diplomatic means. 

3. 	 The Customs Administrations ofthe Contracting Parties agree to meet 

periodically as necessary at the request of either Contracting Party in order to 

review the implementation of this Agreement. 

ARTICLE 13 

APPLIC.<\TION 

This Agreement shall be applicable to the customs territories of both Contrcu..iing Parties 

as defined in their domestic legal and administrative provisions. 
ARTICLE 14 

ENTRY INTO FORCE AND TERM1NATJON 

1. 	 This Agreement shall enter into force thirty (30) days after the date ofthe last 

note in an exchange ofnotes by which the Parties hal'e notified each other in 

v.Titing that their respective legal requirements for the entry into force ofthis 

Agreement have been fulfilled. 

2. 	 Either Contracting Party may terminate this Agreement at any time by notification 

through diplomatic channels. The termination shall take effect three months from 

the date of notification of termination to the other Contracting Party. Ongoing 

proceedings at the time oftcm1ination shall nonetheless be completed in 

accordance with the provisions of this Agreement. 

3. 	 This Agreement tnay be amended at any time by mutual written agreement. 

IN WITNESS WHEREOF, the undersigned, being duly authorized by their respective 

Governments, have signed this Agreement. 

DONE. lnduplioate,at 'Was\,,~'trn, 0 ( · 

in the English language. \ 

FORTHEGOVERNMENTOFTHE FOR THE GOVERNMENT OF THE 

UNITED STATES OF AMERICA: REPUBLIC OF KENYA: