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On 6th October 2017, the government published the Civil
Aviation (Remotely Piloted Systems) Regulations, 2017 which provide the
legal framework for the use of Remotely Piloted Aircraft Systems,
popularly known as drones in Kenya. Entrepreneurs and investors
therefore have the opportunity to tap into a market which a PwC report
estimates to be valued at over USD 127 Billion globally in such sectors
as infrastructure, agriculture, transport, security, mining, security,
media and entertainment amongst others. Already, African countries such
as South Africa, Morocco, Cameroon, Rwanda and Malawi are exploring
drone enterprises in these sectors.
Under the regulations, drones are categorised
either as commercial, private or sports and recreational drones, and can
fall into one of three classes – Class 1 (weighs between 0 – 5 kgs),
Class 2 (weighs between 5 – 25 kgs) and Class 3 (weighs 25kgs and
above). Provided a drone meets certain specifications (weighs 2kgs or
less, not powered by a fuel system, incapable of carrying a payload, not
fitted with a camera etc.) it shall be considered a toy and shall be
excluded from the scope of the regulations.
Irrespective of the category or classification, in
order to be eligible to own a drone, the ownership requirements must be
met – a person has to be:
- 18 years old;
- a Kenyan citizen;
- a resident of Kenya;
- a Kenyan company; or
- the Government of Kenya.
There are no restrictions on the size of
shareholding by a foreigner in a Kenyan company; a foreigner can own
100% of the shares of a Kenyan company. Nonetheless, the approval of the
Ministry of Defence will be required before Kenya Civil Aviation
Authority (KCAA) can register a drone. A temporary permit can be
obtained from KCAA to operate an unregistered drone for a period of 30
days but it will only be renewable once.
What is a commercial drone operation? Any operation for “hire, profit, gain, remuneration or earnings”
including utilizing a drone for research is a commercial drone
operation. In order to pursue commercial drone operations, an operator
will be required to meet the ownership requirements as stated above, and
demonstrate that they have the necessary personnel, systems, programmes
and facilities to operate, supervise and maintain their drones in
accordance to the Civil Aviation Act and the Regulations. Furthermore,
third party liability cover is to be procured before KCAA can grant its
authorisation. As of this date, KCAA is yet to provide any guidance on
the minimum insurance cover a drone operator should maintain.
The regulations require that both commercial and
private piloting of drones be certified by KCAA. A pilot will, amongst
other things, be required to complete a course of training approved by
KCAA. The certificate issued thereafter will reflect the type of
drone(s) a pilot can operate. Presently, KCAA is yet to approve any
training course.
Due to drones being relatively cheap, easy to use
and versatile in their applications, certain prohibitions and
limitations have been placed on operators. Under the regulations, a
drone will not:
- operate over certain restricted areas, installations or government buildings amongst others, without the approval of KCAA;
- operate above 400 feet above ground level or
within 50 meters of a person, vehicle or structure, which is not under
the control of the person in charge of the drone; - carry dangerous goods e.g. chemicals, explosives, volatile liquids etc.;
- operate in unfavourable weather conditions or at night, unless cleared by KCAA;
- operate with a fitted camera (and similar devices) beyond the approved KCAA parameters; or
- operate within the vicinity of an aerodrome
(between 7 to 10 kilometres of an aerodrome), except, with the consent
of the owner or operator of the aerodrome, the air navigation service
provider and KCAA.
What are the risks of operating drones?
Despite the prohibitions (including consumption of alcohol and
psychoactive substances by a drone pilot) and limitations placed by the
Regulations, safety concerns for third parties and property remains.
Jurisdictions such as US, Canada, Germany and South Africa have already
reported incidents involving drones such as an accident and numerous
near misses with aircraft, damage to property and injury to persons.
Regardless of the cause of damage or injury, whether mechanical or
because of negligence, the person with operational control of the drone
will be held liable under the Regulations.
Consequently, insurance cover is paramount to
drone operations. The minimum amount of liability cover for a drone is
yet to be set by KCAA, however, other jurisdictions can offer guidance
on the levels that may be set in the near future. Presently, Canada
requires a minimum third party liability cover of USD 100,000 per drone
while drone insurance providers advise that, for commercial drone
operations, a third party liability cover of USD 500,000 – USD 1 Million
is obtained.
Another concern is one of privacy. High-resolution
cameras are now capable of being mounted on drones and used to easily
trespass on property. The unwanted intrusions and data collected in such
instances have already resulted in legal proceedings in other
jurisdictions. With no privacy specific sanctions under the regulations,
it is inevitable that the courts will have to address such incidents.
The regulations, however, do explicitly provide monetary penalties and
prison sentences for several offences such as, for the illegal
importation, assembly, testing or operation of drones, unlawful
interference of drone operations, non-compliance with the regulations,
amongst others. If convicted, a person can be fined (up-to KShs. 5
Million) , imprisoned for a term not exceeding 6 months or both.
Drone owners who have already imported their
drone(s) should note that they now have six (6) months from the date the
regulations were published to apply for registration. Non-compliance
with the regulations means an owner shall be liable upon conviction, to a
fine not exceeding 1 million shillings or imprisonment for up-to 6
months or both. Therefore, drone operators whether commercial or private
need to seek legal advice to comply with the regulations and to
minimise their risk exposure.
Notwithstanding the above issues, Kenyan
government entities, entrepreneurs and investors are already actively
engaged in seizing the benefits of drone technology. Presently, the
Nairobi County through its service provider is seeking to operationalize
drones to monitor and collect data on motor vehicle parking, to
countercheck the revenue collected in certain areas. The National
Transport and Safety Authority is also exploring ways to use drone to
manage traffic and to augment its role in road safety. Last year, a
local firm was awarded by the International Air Transport Association
(IATA), for its concept of managing drone traffic in Africa. KCAA has
also reported that following the legalisation of the use of drones,
US-based tech giant, Facebook, has requested for permission to test
drone activities in the country.
Why is Kenya set to lead?
After
extensive consultation with stakeholders, the regulations are one of
several that KCAA has proposed to overhaul the existing aviation
legislative framework to make Kenya the premier regional aviation hub.
The purpose is to surmount the traditional barriers faced in investing
in African aviation such as, poor safety and security records and
unfavourable regulations and policies.
Article written by Suzanne Muthaura, Partner and Christopher Kiragu, Senior Associate, MMAN Advocates.
Disclaimer: This article
has been prepared for informational purposes only and is not legal
advice. This information is not intended to create, and receipt of it
does not constitute, a lawyer-client relationship. Nothing on this
article is intended to guaranty, warranty, or predict the outcome of a
particular case and should not be construed as such a guaranty,
warranty, or prediction. The authors are not responsible for any actions
(or lack thereof) taken as a result of relying on or in any way using
information contained in this article and in no event shall be liable
for any damages resulting from reliance on or use of this information.
Readers should take specific advice from a qualified professional when
dealing with specific situations.