The Kenyan Civil Aviation Authority (KCAA) has had a busy year, to-date. It has accelerated the review of the regulations to the Civil Aviation Act, No. 21 of 2013 (Aviation Act) to enhance its standing in relation to other members of the International Civil Aviation Organisation (ICAO). According to the ICAO Safety and Oversight Audit Programme (USOAP), Kenya is marginally ahead of Ethiopia on implementation of its aviation safety oversight legislation but remains behind Nigeria and South Africa. However, these standings are likely to change with the publication of the new regulations to the Aviation Act.
Amongst the first regulations to be published by the KCAA as it updates the aviation regulatory framework were the Civil Aviation (Remotely Piloted Systems) Regulations, 2017 (Drone Regulations). The Drone Regulations have since been repealed by Parliament (on 26th June 2018) on the grounds of insufficient public consultation, inadequate safe guards to privacy of persons, and failure to address security concerns that arise from drone operations. Although the regulatory set back to commercialisation of drone operations, significant strides have been made by the KCAA to overhaul the regulations governing the aviation sector with the new regulations.
Aviation Sector Overhaul
Between May and July 2018, the KCAA published a total of 18 new regulations that focus on both the technical and operational aspects of aviation regulation. It is expected that by the end of the year, a further 14 regulations shall be published. In doing so, the 32 new regulations shall complete the overhaul of the Kenyan civil aviation regulatory system. Though the regulations published substantially remain unchanged from their respective predecessors, there are some elements and notable changes to look out for, such as:
- New regulations
Regulations relating to helicopters are now substantially set out in a single regulation - the Civil Aviation (Operation of Aircraft – Helicopter) Regulations, 2018 (Helicopter Regulations). The Helicopter Regulations now consolidate the provisions relating to helicopter operational requirements, flight operations and operating limitations, helicopter equipment and documents, as well as, the flight crew requirements and qualifications. Similarly, several regulations addressing technical aspects (aviation communication, navigation and surveillance systems) have also been consolidated and published.
- New timelines for applications
Several of the newly published regulations retained their original timelines to submit applications. However, in some cases, some applications shall need to be filed earlier. A notable example identified under the Civil Aviation (Air Operator Certification and Administration) Regulations, 2018 (AOC Regulations) is the requirement for an operator to submit their application for an initial issue or reissue for an air operators certificate at least 90 days before the intended date of operation, instead of the 60-day period previously provided. Similarly, an approved training organisation (ATO) is also now required to renew its certificate at least 60 days before it expires, instead of the 30 days previously required under the repealed regulations, to ensure the continuity of its training programmes.
In the same way, a party that is aggrieved by the decision of the KCAA under the Civil Aviation (Aircraft Nationality and Registration Marks) Regulations, 2018, is now required to lodge their appeal to the decision within 21 days and not the 30 days stipulated under the Aviation Act.
- New compliance requirements and standards
It is now mandatory under the Civil Aviation (Approved Maintenance Organisation) Regulations, 2018 that an approved maintenance organisation (AMO) have a dedicated Head of Safety amongst management personnel. At a minimum, the Head of Safety should have at least 5 years’ experience in aircraft maintenance or flight operations and should have successfully completed a training in safety management systems course recognised by the KCAA. Also provided under the AMO regulations, is the prohibition of an AMO to operate with freelance personnel and maintenance engineers.
There is also a new requirement under the AOC Regulations, that the Head of Operations of an air carrier should have at least 3 years’ experience in the management of a commercial air transport operation. Likewise, for aircraft maintenance engineers with no relevant technical training are now required to have a minimum of 5 years practical maintenance experience in order to obtain a license under the Civil Aviation (Personnel Licensing) Regulations 2018.
Under the Civil Aviation (Operation of Aircraft for Commercial Air Transport) Regulations, 2018 provisions relating to the minimum rest period for crews have been expounded upon. The provisions now include minimum rest periods in relation to the distance of a crew member’s residence. The regulations also place an obligation on an operator to not allow any crew member to fly without being in possession of accurate and up-to-date flight records for the preceding 28 days before the flight. Failure to adhere to the new provisions, an operator risks on conviction a fine of up-to KES 1 million, imprisonment for a period of up-to 1 year, or both. Furthermore, action to the contrary exposes an operator not only to the risk of a civil claims by its employees but also third parties on the further spectrum of negligent liability.
- Delegation of Authority the KCAA
The new regulations provide for the delegation of powers by the KCAA to inspectors to impose restrictions on a regulated entity to preserve safety where an undesirable condition has been detected. In exercising the powers, the inspectors are required to exercise due care and to act in good faith in the interest of preserving safety until such time that the undesirable condition has been resolved.
Regional Integration and Increased Competition
The grant of a category 1 status to Jomo Kenyatta International Airport that paved the way for direct flights from Kenya to the United States of America (US) provides new opportunities for local and international operators and investors. The opportunities are not only in operation of aircraft but also in the provision of auxiliary aviation services. The national carrier, Kenya Airways, is already leveraging this opportunity by its entry into a code sharing agreement with Delta Airways (US) to access a larger market, and at the same time seek to harness the benefits of the operational synergy of the arrangement. The entry into code sharing agreements, joint ventures, shareholders agreements or similar arrangements to leverage customer loyalty and retention, enable a carrier to stem off competition from existing regional carriers and new entrants to the lucrative market.
Future Developments – What’s Next for 2018
For the first time, the civil aviation regime in Kenya will have the Consumer Protection Regulations with substantial penalties and compensations for the denial to board, cancellations, damage to or loss of baggage, or passing off by an air carrier. It also proposes to extend liability from the air carrier, in respect to persons with disabilities or special needs, to aerodrome operators and ground handling services for denial to board, or failure to provide necessary services.
1ICAO provides an interactive viewer to compare its audit on effective implementation under various categories (including legislative implementation) against the global average or that of ICAO members. https://www.icao.int/safety/Pages/USOAP-Results
2The term “technical” is used to refer to the Regulations that deal with communications systems, aeronautical charts, instruments and equipment, aeronautical radio frequency spectrums etc.
3The term “operational” is used to refer to the Regulations that deal with the licensing of aviation personnel, organizations, certification requirements, registration etc.
4The number does not account for the Drone Regulations.
5Approximately USD 40,000.00.
6Examples of technical regulations published are the Aeronautical Charts Regulations, Aeronautical Information Services Regulations, Units of Measurement To Be Used In Air and Ground Operations Regulations, amongst others.
7The Jomo Kenyatta International Airport is scheduled for expansion. The Government of Kenya under the Lamu Port-South Sudan-Ethiopia-Transport Corridor (LAPSSET) project, amongst other development objectives, was to develop an airport in Isiolo (Eastern, Kenya) and Turkana (North, Kenya). The former is already complete, and the latter is likely to receive renewed interest with the advent of oil exploration within Northern Kenya.
8Kenya Airways is expected to have its first cross-Atlantic inaugural flight from Nairobi to New York in October this year.
9According to the Flight Global, World Airline Rankings 2018, Ethiopia Airways (under the Star Alliance) is the leading African carrier in revenue and traffic.
10Uganda, Tanzania and Nigeria now seek to relaunch their national airlines. Zambia Airways is set to be re-launched after Ethiopia Airlines acquired a 45% stake in the airline. Also, according to the KPMG, Aviation Industry Leaders Report 2018, African airlines can expect in future expect greater competition from Chinese carriers.
Should you have any enquiries regarding this article or any general queries on the subject matter, kindly contact Suzanne Muthaura, Partner and Christopher Kiragu, Senior Associate, MMAN Advocates.
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