Kenya Passes Significant Unmanned Aircraft (Drones) Legislation
The Civil Aviation (Unmanned Aircraft Systems) Regulations, 2020 are now effective, having been gazetted in the Kenya Gazette Vol. CXXII – No. 58 of 3 April 2020 and published on 30 March 2020 (Special Issue 611). The regulations will govern, among others, the importation, ownership, registration, operation, procurement and manufacture of Unmanned Aircraft Systems, more commonly referred to as drones.
Drone related activities have been in a state of limbo, after parliament in March last year, rejected proposed regulations that would have permitted and regulated their use citing national security concerns. Soon thereafter, the Cabinet Secretary for Transport, Infrastructure, Housing, Urban Development and Public Works, through Legal Notice No. 76 of 2019 declared the use of unmanned aircraft illegal, with any breach attracting a penalty of up to Kshs. 100,000 or one-year imprisonment. Consequently, the Kenya Civil Aviation Authority (“KCAA”) published a public notice in November 2019 warning the public not to use drones or risk facing the penalties outlined in the Legal Notice.
Currently, with the significant entry into force of the regulations, the use of drones is now (subject to compliance with the regulations) permissible in Kenya. We highlight some of the key provisions of the regulations below.
Registration and Eligibility
KCAA is responsible for the registration and operation of drones in Kenya. In determining whether to grant a certificate of registration for a drone, KCAA will among other things, carefully consider national security interests, commitments under any regional or international treaties, the intended use of the drone and any administrative investigations KCAA is conducting against an applicant. In order to be eligible to own and operate a drone within and out of Kenya, one must either be an adult Kenyan citizen or resident, a body corporate, or national/county government. Furthermore, companies owning or operating drones locally for long term commercial purposes must be Kenyan companies.
In respect of foreign operators or companies looking to conduct any drone related activities for a limited period, they may apply for a temporary permit from KCAA. The KCAA may grant the permit depending on the drone category they wish to operate and subject to the regulations.
Categorisation of Drones
The regulations categorise drones into three types, depending on the level of risk they pose to the public, property or manned aviation. Firstly, there are Low Risk drones which should not exceed 25 kgs and can only be operated within visual line of site, at a maximum height of 400 feet above ground level and 50 meters lateral distance from any persons, buildings or objects not associated with the drones. Secondly, Medium Risk drones which must also be operated within line of site and on heights and lateral distances as determined by the KCAA. Lastly, High Risk drones that may be operated in any unrestricted airspaces, subject to Air Traffic Control instructions, the Civil Aviation (Rules of the Air) Regulations and approval of the KCAA.
Interestingly, the regulations do not make any express distinction between private and commercial use of drones. However, they generally provide for the authorisations that are required to own or operate a drone, as seen below.
Permits and Authorisations
Some of the permits to note are:
Registration Certificate: A drone operator or owner should register the drone with KCAA and be issued with a certificate of registration. Given that any person, including a corporation, who wishes to operate a drone must obtain authorization from the KCAA, both private and commercial users would need to register their drone, regardless of category. For drones already in Kenya, registration of the same needs to be done within six months from the date the regulations were passed.
Import Permit: A permit from KCAA is required prior to importing a drone or its components into the country. Prior to issuance of a permit, the KCAA will obtain security clearance and approval from the Ministry of Defence.
Temporary Permit: This permit may be issued for the use of a drone for a period not exceeding thirty (30) days, on terms and conditions set by KCAA. This permit is ideal for foreign operators and companies who wish to operate a drone in Kenya for a limited period.
Remote Aircraft Operators Certificate: Any person who wishes to operate a drone for commercial purposes, reward or hire must obtain this certificate from KCAA at least ninety (90) days before the intended date of operations, which shall be valid for twelve (12) months. The applicant must demonstrate, among others, that it has (i) its principal place of business and is registered in Kenya; (ii) an adequate organization with properly qualified staff; (iii) a method of control and supervision of flight operations; (iv) training programme, ground handling and maintenance arrangements; and (v) obtained Ministry of Defence security clearance for matters related to defence.
Remote Pilot Licence: This licence should be obtained by any person intending to operate a drone falling within the Medium Risk to High Risk category.
Training Authorisation: Any person who wishes to offer training on drone operations must obtain prior authorisation from KCAA.
Submission of Applications
The KCAA is in the process of adopting an online platform to facilitate the process of applying for and submitting applications for permits and authorisations. In the meantime, all applications should be submitted to the KCAA through the relevant email address, that is, [email protected]. The application should contain details of the drone and the specific authorisation sought.
In regard to drone surveillance or related activities which entail capturing an image of any person or their property, that person’s written consent is required. Furthermore, the regulations prohibit the reproduction, processing, sharing, distribution or publication of information, pictures or videos that have been captured beyond the area over which the drone has been approved to operate.
Safety and Insurance
Any accidents should be reported to the KCAA, which is required to establish a mechanism through which the members of the public can report accidents and violations of the regulations. Additionally, the holder of a Remote Aircraft Operators Certificate should establish a safety management system which will include a process for identifying safety hazards and developing remedial action.
The regulations set out mandatory insurance requirements for the operation of drones unless dispensed with by KCAA based on the category in which the drone belongs.
Penalties for non-compliance
The regulations contain hefty penalties for non-compliance which consist of either or both a monetary fine of up to Kshs. 2,000,000 and an imprisonment term of up to 3 years.
Notably, drones are being used the world over for different purposes. These include wildlife protection through aerial surveillance, humanitarian activities, in the entertainment industry and photography and security surveillance. Drones have also proven to be instrumental in forest management, cargo transportation, weather forecasting, agricultural monitoring, safety inspections, disaster relief, search and rescue operations and healthcare. Therefore, there is huge untapped potential for drone uptake in Kenya, as we adopt them for similar uses.
Rwanda was the first country in East Africa to pass laws relating to the operation of drones. There has since been a significant positive impact on healthcare provision in the country. Through the use of drone technology, Rwanda has been able to deliver vaccines, medication and blood supplies urgently needed for transfusions in hard to reach hospitals and other remote areas. Kenya is likely to mirror this approach and other innovative models to incorporate drones in healthcare delivery to rural areas and in carrying out some, if not all, of the other operations identified above.
The Nairobi County Executive for Health Services, Hitan Majevdia on 8 April 2020 announced that Nairobi County is planning to procure and use drones to conduct aerial fumigation of the city in a bid to combat the spread of the Covid-19 virus. Private users can also breathe a sigh of relief as they may now use drones in social gatherings such as weddings and for other recreational purposes, provided they meet the registration requirements and limitations set out in the new law.
If you would like advice or guidance in respect of the above, please do not hesitate to contact us.