Abstract to the current UAV technology. To

Abstract

This
paper examines the regulatory gaps relating to Kenyan’s new aviation law – “The
Civil Aviation (Remote Piloted Aircraft Systems) Regulation, 2017.  The lucrative and emerging “drone” industry
poses a great risk if proper laws are not established. Therefore, a focus on
Unmanned Aircraft Vehicle classification and registration, legal application of
operations of Unmanned Aircraft systems and security and ethical issues are envisioned.
Brief assessment of the Federal Aviation Administration and European Commission
drone regulation shall highlight the comparativeness of the laws to Kenyan Remotely
Piloted Aircraft Systems regulations with reference to composition and the
possible legal voids and gaps in the law. The level of compliance to
International Civil Aviation Organization regulatory framework on drones shall
also be pointed out within the study. The results of this analysis shall
reflect on some important findings on legal drone operations and will suggest
possible strategies that will be geared towards a less challenging legal
environment for Unmanned Aerial Systems operations in Kenya.

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Key
words: Kenyan drone law, Remote Piloted Aircraft Systems operations in Kenya,
Unmanned
Aerial System in Kenya, Unmanned Aerial Vehicles.

 

 

 

 

 

Regulating
Unmanned Aircraft System in Kenya

Unmanned
aerial vehicles (UAV) trace their origin from the 1850s where kites and
balloons were used as unmanned military vessels. During World War I and
thereafter, the technology journeyed through major evolutionary phases that led
to the current UAV technology.  To
expound, John F. Keane states that, “Unmanned air systems trace their modern
origins back to the development of aerial torpedoes almost 95 years ago.
Efforts continued through the Korean War, during which the military services
experimented with missions, sensors, and munitions in attempts to provide strike
and reconnaissance services to battlefield commanders. In the 1950s, both the
Navy and Air Force bifurcated their efforts to concentrate on cruise missile and
UAV development via separate means. UAV refers to a reusable aircraft that has
the ability to perform a variety of missions. There are three classes of UAVs:
(i) pilotless target aircraft that are used for training purposes (such as
target drones); (ii) nonlethal aircraft designed to gather intelligence, surveillance,
and reconnaissance (ISR) data; and (iii) unmanned combat air vehicles (UCAVs)
that are designed to provide lethal ISR services.” (F. Keane, 2013).

Today,
there are different terminologies that are used to refer to UAV. Unmanned
Aircraft Systems (UAS), Remotely Piloted Aircraft Systems (RPAS) and Drones are
technical terminologies that can be used lightly to generally refer to a system
that consists of an aircraft that does not carry any human operator, has a
payload and a ground controlled station that is usually manned by an operator
who sometimes has an additional person called a spotter. (Adam C.
Watts, 2012).
Experts however may use these terms to refer to different classes of UAV.

These
UAS may be semi-autonomous or fully autonomous in their nature of operations.
The variance of and level of automaticity for these UAS largely depend on: the
technology of the system, the nature of operations and the operating
regulations involved. Training also largely dictate the level of automaticity
within these operating margins.

UAS
is by far the youngest facet of the aviation industry which is decades old in
Kenya. UAS can largely be used by government agencies e.g. Kenya Police, Kenya
Military and Kenya Wildlife Services (KWS) to run tactical  intelligence, surveillance and reconnaissance (ISR)
and search and rescue (SAR) operations as in the case of United States military,
(Higgins, 2017). On the other hand, the civilian use of
drones is only limited by the current technology advancement. UAS companies
like Boeing, DJI and Intel are in the front line producing these technologies
that outperform the set limitations of UAS operations today. They have great
impact on industries like: oil and gas, construction, agriculture and utility
inspection, (Intel, 2018).

This,
plus the fact that there is an explosion of interested and largely untrained
individuals ready to own and “fly” a drone in the civilian airspace creates not
only a legal challenge but also a social and security issue emanating from
privacy issues, possible interference with manned aircrafts, injury to
individuals due to operator loss of control link and poor quality drones and
training systems.

The
flip side of this is that the growth of UAS technology promises growth in
Kenya’s economy and the world at large. Civilian jobs are projected to open up
in many industries as pointed out by Michael Botyarov, “UAS will have a
significant impact on society because they will enable increased efficiency and
promote innovation. Remedial tasks, such as goods delivery, will be replaced by
UAVs hence freeing up personnel and equipment resources. By improving resource
management, and focusing on larger issues, society will be able to have a
higher degree of innovation.” (Botyarov, 2016).

In
support, Larry Dickerson, an unmanned vehicle analyst writes, “Forecast
International expects production of about 1,000 UAVs of all types in 2014, with
output rising to nearly 1,100 units in each of the following two years.
Thereafter, production is forecast to average about 960 UAVs annually for the
remaining seven years of the 2014-2023 forecast period.” (Dickerson, 2014). A drone market survey by Business
Insider confirms that the current drone market has surpassed these forecasted
numbers to a staggering 2.2 Million drone sales worldwide in 2017, “and revenue
surged 36% to $4.5 billion, according to research firm Gartner.” “But the
Consumer Technology Association points out that 2.4 million personal drones
were sold in the U.S. alone in 2016, more than double the 1.1 million sold in
2015.” (Andrew Meola, 2017). To note, the
difference in numbers from these giant research firms is due to the different
definition of drones for their survey.

Source:
(Business Inteligence, 2016).

Without
concreate laws therefore, these benefits cannot be felt in our economies. However,
in the process of regulating, authorities should be careful not to over
regulate and struggle the life out of a newly born and promising industry. One
such circumstance is outlined by the European RPAS Steering Group concluding
that, “more efforts are required in Europe to remove the present fragmentation
by developing a seamless regulatory framework and enhancing the coordination of
various on-going research and development (R) initiatives. One basic
principle underpinning the integration of RPAS, perfectly aligned with International
Civil Aviation Organization (ICAO) principles, is that RPAS have to be treated
just as manned aircraft whilst duly considering the specific character of RPAS.
RPAS rules must also be as light as necessary, in order to avoid an unnecessary
burden on the emerging industry. Last but not least, RPAS integration requires
addressing adequately the societal impact of RPAS applications by covering important
elements as liability, insurance, privacy, etc.,” (European RPAS Steering Group, 2013).

It
is therefore a fact that international law acts as the bond between shared laws
by different states and international organizations. This bond brings about a sense
of international jurisdiction that ensures laws are enforced with common or
otherwise shared interpretation. When such a system is in place, these concepts
even in the absence on state or national regulations are able to provide a key
concept of transparency, accountability and predictability of the will of
member states in any matter, (Brooks, 2013).

For
UAS international regulations, ICAO, through respective meetings, “agreed that
there was a need for harmonization of terms, strategies and principles with
respect to the regulatory framework and that ICAO should act as a focal point.”
It therefore, “should serve as a focal point for global interoperability and harmonization,
to develop a regulatory concept, to coordinate the development of UAS SARPs, to
contribute to the development of technical specifications by other bodies, and
to identify communication requirements for UAS activity.” (International Civil Aviation Organization, 2011).

With
ICAO as the United Nations agency that has mandate over aviation matters
through the Chicago Convention of 1944, its members and other international
organizations (IOs) therefor form part of the team that develops these International
Standards and Recommended Practices (SARPs). The SARPs then act as the basis
for member states to develop there national civil regulations through Civil
Aviation Authorities (CAA) e.g. Kenya Civil Aviation Authority (KCAA). CAA’s
main task is to establish national regulatory bodies within their jurisdiction
and ensure the implementation of the ICAO SARPS. The Federal Aviation
Administration (FAA), is the CAA equivalent in USA. The FAA is accountable for forming
aviation regulations within USA while the European Aviation Safety Agency
(EASA) acts as the authority responsible for drafting aviation safety
legislation and providing technical advice to the European Commission and all
its member states.

These
regulating authorities and IOs are required to ensure that regulations
concerning UAS hold the highest standards with respect to their effectiveness,
legality, ethics, safety and privacy. Effectiveness and legality of the law
being the degree of efficiency of the law to govern operations of UAS within a state’s
jurisdiction at all times. Ethical factor of the law being the ability of the governing
authority to democratically protect the people’s interests at all times with
regards to UAS operations. As these operations take place, the aspect of safe
operations of UAS to ensure no harm to people or destruction of property is
caused by any operator during their missions. And lastly, to ensure privacy
with regards to general population is adhered to always.

With
these core requirements in though, the government of Kenya, through the Cabinet
Secretary for transport, Infrastructure, Housing and Urban Development and
through the powers conferred to him under the Civil Aviation Act, 2013, made
the Civil Aviation (Remotely Piloted Aircraft Systems) Regulations, 2017 (Government of
Kenya, 2017).
This paper shall explore the Civil Aviation (Remotely Piloted Aircraft Systems)
Regulations, 2017 as follows:

                              
I.           
CLASSIFICATION AND REGISTRATION OF RPAS.

Under
Kenyan law, RPAS means, “A remote piloted aircraft, its associated remote pilot
station(s), the required command and control links and any other component as
specified in the type design.” (Government of Kenya, 2017). Kenyan law forbids
the possession of RPAS without the clearance from the ministry of security and approval
by KCAA. Even though there is no clear registration platform, as in the case of
FAA unmanned aircraft on-line registration (Federal Aviation Administration, 2017), KCAA calls for
owners and operators to register a RPAS. If found to contravene this
regulation, KCAA assumes the power to de-register, confiscate the RPAS or
legally charge the individual in a court of law.

ICAO
acknowledges that UAS should have minimum nationality and registration marks
that ensure for recognition and calling of aircrafts and in this case, RPAS. It
further points out that difficulty in display of registration due to size of fuselage
should be considered by the authorities in respect to sUAS. FAA, requires all
UAS to be registered through the streamlined online system while “Traditional
Aircraft Registration under 14 CFR Part 47” is required for all other UAS above
55 pounds. (International Civil Aviation
Organization, 2011).

 RPAS in Kenya are categorized as: CAT A being
RPAS utilized for recreational and sports purposes only. CAT B as for private
activities only and CAT C for commercial purposes.  Classification of RPAS by weight therefor are
within these three categories with CLASS 1 weighing 0-5kgs, CLASS 2 weighing
5-25kgs and CLASS 3 those above 25kgs. When compared to European Union drone
laws, “currently, EASA has the mandate (under Regulation 216/2008/EC) to
regulate RPAS when used in civil applications and with an operating mass of
more than 150 kg. EU Member States and the national civil aviation authorities
regulate experimental or amateur-build RPAS, military and nonmilitary governmental
RPAS flights, civil RPAS with an operating mass of 150 kg or less, as well as
model aircraft. Many countries (e.g. France, Germany, Italy, UK, Austria and
Denmark) have adopted, or are about to adopt (e.g. Belgium), rules on some
aspects of civil RPAS with an operating mass of 150 kg or less. However, the
extent, content and level of detail of the rules differ, and conditions for
mutual recognition between EU countries have not been reached. This impacts
cross-border operations directly as RPAS operators have to apply for a separate
authorization in each country.” (European Parliament, 2015).

When
considering eligibility of ownership, KCAA, FAA and EASA approves ownership of
RPAS by legal citizens (with specific conditions e.g. attained legal age in
Kenya), a legally registered company and the national agencies and governments.
Ownership of military grade or RPAS with military specifications is however
prohibited for civilians globally.

                           
II.           
OPERATION OF RPAS.

It
is the responsibility or the owner or operator of RPAS to maintain safe
operations and ensure compliance to regulations especially with respect to
registration and operations within the specified airspace of operations. Before
operations commence, KCAA requires the owner to facilitate information with
regards to operations, RPAS specifications, performance characteristics,
communication, navigation and surveillance capabilities, aeronautical safety
communication frequency equipment, certificate of registration, license of
remote pilot among others. These details are not limited to any class or
category of RPAS unless with specifications by the authority.

With
these requirements in place, authorization of operations will be granted in
respect to the category of use. This means that all recreational and sports
RPAS shall be registered and authorized under their respective clubs. While
privately used and commercial used RPAS will have the approval issued with
regards to acquisition of proper remote pilot training and remote pilot
aircraft operator certificate approval respectively. A thirty day grant
approval could be issued to applicants with a one renewal chance for
unregistered RPAS. This approval shall be granted through an online application
process under KCAA.

Negligent
operation of RPAS and carriage of prohibited and dangerous goods by the
operator is cautioned at all costs especially when endangering manned
operations, people or property. In addition to this, the operators shall always
avoid restricted areas and strategic installations at all times unless with
approval from KCAA.

When
compared to FAA drone regulations, Kenya has similar operating limitations
whereby RPAS are required to fly below 400ft above level ground and within 50
meters of any person, vessel or structure. That operations should always be
conducted on visual metrological conditions unless with approval for private
and commercial flights and privacy should always be observed for operations
using a camera as a payload.

While
observing these limitations, it is advisable to always adhere to the general principles
of aviation i.e. rules of the air and report when loss of link occurs or
incidences and accidents using the required safety management system at all
times.

When
approved to fly within controlled airspaces, the operator will provide his
flight plan to air traffic controllers (ATC) and notify ATC at all times when
operating RPAS five kilometers out of launch area. It is important to note that
KCAA, FAA and EASA prohibit RPAS flights within ten kilometers of an aerodrome
with variance of distance according to the nature and type of aerodrome.

It
is important to note that a valid Remote Piloted Aircraft Operator’s
Certificate (ROC) issued by KCAA authorizes commercial operations of RPAS
within the stated limitations and conditions specified. This certificate can be
amended, canceled, revoked or otherwise approved by KCAA at any time subject to
security and operational issues. To get the authorization, an operator shall,
with respect to the nature of organization, show competence in handling the
desired operations and monitoring thereof. Proof adequate training on ground
handling and maintenance and have a Safety Management System (SMS) in place.

                        
III.           
RPAS SAFETY AND SECURITY REQUIREMENTS.

All
RPAS operations are required to be conducted in reference to an approved
security procedure certified by KCAA. This security program enables operators
to govern and protect remote pilots and any other facility from unlawful interference.
The main aim being protection of remote stations, UAS and any other facility
under the control of a remote pilot.

UAS
have however revolutionized the aviation industry through the rapid growth of
technology, automaticity of aircrafts and nature of unmanned operations. This therefore
poses numerous challenges as widely discussed by Achim Washington. In
conclusion of the research, it is pointed out that the uncertainty and
potential revolution of Safety System Regulations (SSR) within aviation shall
be an outcome of reassessment of the said regulations with the UAS operational potential
in mind. This shall bring out a variety of contemporary principles of management
and making safety decisions judging from the difference in nature of manned
aviation operations and the current nature of unmanned operations. (Achim
Washington, 2017).

In
line with security systems, ICAO advocates for the proper adherence to stringent
security measures especially with UAS operations. This is due to the fact that
UAS operations cut across all industries and are not limited in nature of the
potential of operations. This being the case, it is therefore important to
strictly scrutinize personnel dealing with UAS operations to avoid there use in
terrorism and other unlawful activates. It is also highlighted that operational
premises, operations documents and actual UAS should be properly secured against
unauthorized persons since this could open a window leading to jeopardized
security of RPAS operations.           

The
use of camera and recording payloads brings out both security and privacy
issues in all levels of UAS regulation. Security in terms of the purpose of
images and recordings and privacy in terms of the authorization or recording
people and property. While some critics link the use of UAS cameras to the use
of Close Circuit Surveillance Television (CCTV) in our society today, there are
proportionate number of organizations and critics how feel that UAS are infringing
privacy rights to persons and property. Ashleigh B. Rhodes and Ole B. Jensen, urges
this topic showing the overall use of UAS cameras for civilian surveillance as
the next generation mode of safety and security measure within our society. As
much as they concur with the misuse of UAS to invade people’s privacy, this
aspect can at times be disregarded for a greater good on surveillance
especially when one is caught in the act of breaking the law. Also urged is the
fact that government agencies through different state and county laws require
to put in place limitations within their jurisdiction on the use of drones and the
limitations for infringement of these privacy laws, (Jensen, 2017).

 

 

CUNCLUSION

The
evolution of UAS from the early years has rapidly seen the formation of new and
extensively creative systems within the unmanned systems industry today.  This being a result of both military and
civilian advancement in the operational capabilities with regards to the use of
remotely piloted aircraft systems. Today, UAS are used to impact all industries
around the world and this has caused a new industry to be born. The “drone
industry” by itself is already a multimillion dollar industry with its past projected
potential easily being archived and surpassed today.

This phenomenon therefore,
makes international organizations like International Civil Aviation
Organization, regional authorities like European Union and state agents like
Kenya civil aviation authority and federal aviation administration, see the
need to govern the fast growing unmanned aviation industry for the good of all.
As regulations are made and implemented, issues with regards to proper
operation procedures, legality, safety and security and ethics in operations
are tackled.

The
government of Kenya through its legislative arms are among the many states that
are on the fore front of regulation RPAS. Through the law published in October
2017, the state highlights the requirements to own and register RPAS. Although
the said platform or registry is not available yet, it seems that the authority
has futuristic consideration to automate such processed. Of importance to note
is that Kenya has three different categories of RPAS each encompassing three
different classes with regards to Wight starting from 0kgs. While CLASS 3
governs RPAS 25kgs and above with no upper limitation of weight, FAA and EASA
have an upper capitation at 150kgs above which the RPAS is considered to adhere
to manned aircraft regulations as governed by ICAO.

As pointed out by ICAO,
the major challenge in regulating RPAS today stands at the cross road where
authorities might either be too lenient and allow substandard and or RPAS
operations that endanger both human and property or be too stringent and
therefore stunting the growth of a potentially lucrative industry that is meant
to positively impact Kenya’s economy.

To strike this balance,
more research should be carried out and better analysis made in order to
positively govern the industry in Kenya.