Kenyan aviation law is set for a major progressive overhaul based on recent proposed amendments by the Kenya Civil Aviation Authority (KCAA) and the Kenya Airports Authority (KAA). In this context, the inaugural Aviation Law Seminar organised by Iseme, Kamau and Maema Advocates (“IKM”) on 23rd June, 2017 was a timely event. It brought to the fore pertinent issues in the industry and provided a forum for fruitful interaction between industry regulators and stakeholders.
Among the topics tackled in the Seminar were Kenya’s strategic position as a commercial and air travel hub in Africa coupled with what the KCAA and the KAA are doing to harness the country’s potential as a point of entry into the continent. In his speech, the Director General of KCAA, Captain Gilbert Kibe (the “DG”) underscored the fact that Kenya is making significant strides towards commencing direct flights from Nairobi to US airports. One of the key milestones in this direction is the attainment by Kenya of category 1 status under the Federal Aviation Administration – International Aviation Safety Assessment Program. With this achievement, Kenya will be among the few African states to enjoy this prerogative. The DG further pointed out the country’s consistently high rating in the recent past in the fields of international safety and security audits. For instance, in 2016, Kenya scored 89% in the implementation of aviation security Standards and Recommended Practices (“SARPS”) in an audit carried out by the Universal Security Audit Programme – Continuous Monitoring Approach.
On his part, the Managing Director of the KAA, Mr Jonny Andersen expressed his commitment to providing infrastructure for the aviation industry and to efficiently deliver safe and secure airport services for the country into the future. Having taken the helm at the KAA in November 2016, Mr. Andersen brings with him vast experience and deep industry knowledge. Before his current tenure, Mr. Andersen served as director of National Airports at Avinor AS, a state-owned firm that manages airports in Norway.
Mr. Haanee Khan, Senior Associate and Aviation team leader at IKM, gave insights into the fast changing aviation law landscape in Kenya. In providing an overview of aviation law, Mr Khan noted that by virtue of acceding to the Convention on International Civil Aviation (commonly known as the Chicago Convention) in 1964, Kenya is required to adhere to the Annexes to the Chicago Convention. He further pointed out that the Civil Aviation Act, 2013 which repealed the Civil Aviation Act, 2002, was passed precisely to achieve greater compliance with the Chicago Convention and its Annexes. Moreover, 15 sets of Regulations to the Act are in force to provide a framework for the operation of the aviation industry and to give effect to the Annexes. However, due to factors such as the amendment of the Annexes, emerging safety issues and new technology as well as the need to fully comply with best industry practices, the KCAA saw the need to replace the current regulations with approximately 31 draft regulations which are currently under discussion.
Mr. Khan pointed out some of the changes to be introduced which include:
- the draft Remotely Piloted Aircraft Systems (RPAS) Regulations, 2017 designed for the regulation and operation of drones in Kenya. He noted that while the Government recognises the enormous benefits which may stem from the implementation of the RPAS Regulations, it did appreciate the potential risk of misuse and hazards related to the operation of drones, prompting an added emphasis on security and safety throughout the draft Regulations. The 2017 draft Regulations will, among other things, define who may own a drone in Kenya, classify drones and set out the requirements to be met for the registration, operation and importation of drones; and
- the draft Consumer Protection Regulations, 2017 modelled after the tried and tested EU Air Passenger Rights Regulations 261/2004. They, for instance, specify penalties for denied boarding, cancellation, delay and no show, baggage, rights to care and redress for passengers.
Mr. Denis Kimani, the Chief Legal Officer at KCAA, discussed some of the changes introduced to the Civil Aviation Act, 2013 by the Civil Aviation Amendment Act, 2016. He noted that the definitions introduced by the Amendment Act include “unmanned aerial vehicle”. While the number of the KCAA Board members has been reduced from 11 to 10, there are still directors from various government ministries and five directors to be recruited through a competitive process. In order to achieve the optimum skill diversity on the Board, the Amendment Act requires the Board members who are not from Government to possess varied professional qualifications. Additionally, to strengthen corporate governance, independence requirements to be met by the five industry directors have been introduced. Furthermore, the provisions on the establishment of the National Civil Aviation Administrative Review Tribunal under the Act have been repealed and replaced by new provisions on appointment and composition of the Tribunal members. The Amendment Act also stipulates that the Tribunal is to be a subordinate court under article 169 (1) (d) of the Constitution.
From the general overview of the industry given at the seminar, to the legal aspects of aviation expounded upon, and the lively interactions that followed, the Seminar proved to be worth all its weight in gold. IKM looks forward to organising similar aviation law seminars annually so as to keep stakeholders abreast of new developments in this dynamic sector. The firm will also issue timely alerts whenever there are noteworthy developments in the aviation law. IKM’s alliance with DLA Piper, the world’s largest law firm by revenue, enables IKM to tap into DLA Piper’s extensive experience in aviation law practice.