Kenya's bold move to tame unruly flyers

Kenya delegation led by High Commissioner to Canada Immaculate Wambua (Second left) deposits the Instrument of the Accession to The Protocol to Amend the Convention on Offences and Certain Other Acts Committed on Board Aircraft to ICAO Secretary General Juan Carlos Salazar (centre) on Friday, 7th October 2022, in Montreal, Canada. Picture Courtesy of Kenyan Embassy in Canada. [Standard]

If you are that type of amorous aircraft passenger who makes unwelcome, forceful advances to the beguiling cabin crew, you now have a reason to tame your loins.

Also, if you have a penchant for vandalising aircraft equipment- lifting off ear pieces and parts of the cabin interior, and the habit of ignoring crew orders on the use of electronic devices while on board.

Kenya has closed ranks with the international community to tame runaway cases of unruly or disruptive air passengers previously not covered in international law and conventions.

Earlier this month, Kenya deposited the instruments of accession to the protocol to amend the convention on offences and certain other acts committed on board aircraft.

This was on the sidelines of the 41st Assembly of ICAO member countries at ICAO headquarters in Montreal, Canada.

Officials of Kenya Civil Aviation Authority (KCAA) led by the chairman of the board Joseph Nkadayo, Director General Emile Arao, Kenya Airways MD Allan Kilavuka and Kenya's High Commissioner to Canada Immaculate Wambua attended the brief ceremony.

The protocol, now popularly known as the Montreal Protocol of 2014, was adopted to strengthen the capacity of states to curb the escalation of incidents involving unruly passengers.

High Commissioner to Canada Immaculate Wambua and ICAO Secretary General Juan Carlos Salazar. [Standard]

According to ICAO circular 288 "Guidance Material on the Legal Aspects of Unruly/Disruptive Passengers", the protocol aims to tame cases of passengers who fail to respect the rules of conduct aboard aircraft or to follow the instructions of crew members and thereby create a threat to flight safety and/or disturb the good order and discipline on board aircraft.

The circular said that incidents of that kind had been increasing over the years. According to the International Air Transport Association (IATA), there were over 58 000 reports concerning unruly and disruptive passengers between 2007 and 2016.

"During this time, there has been an upward trend in unruly and disruptive passenger reports with an average of one incident for every 1 424 flights in 2016," the circular said.

Some of the incidents cited by IATA include assault on crew members or passengers, fights among intoxicated passengers, child molestation, sexual harassment and assault, disorderly conduct as a result of alcohol intoxication, illegal consumption of drugs on board; and the refusal to follow a crew member's lawful instruction.

Others include the ransacking and sometimes vandalising of aircraft seats and cabin interiors; unauthorised use of portable electronic devices; destruction of safety equipment on board, and other disorderly or riotous conduct.

"It has been noted that what generally happens in the street is now happening on board aircraft," the ICAO report noted.

According to ICAO, the incidents are not restricted to a particular airline, state, customer category, class of service, or length or type of flight.

In several cases, the acts and offences directly threatened the safety of the aircraft.

In some cases, the pilots had to make unscheduled stopovers to disembark the unruly and disruptive passengers for safety reasons. ICAO Secretary General Juan Carlos Salazar received Kenya's instruments.

The conundrum of prosecuting unruly passengers

• International conventions relating to aviation security are designed to combat terrorism, including hijacking, sabotage, not unruly and disruptive passengers.
• Aircraft move across national borders, multiplying the scope of jurisdictions
• Due to this diversity of laws and jurisdictions behaviour regarded as an offence in one jurisdiction may not be regarded as an offence in another.
• A suspected offender may be prosecuted not only in the State of landing but also in the state of registration of the aircraft or in the State of the operator.
• In many cases, disruptive passengers are released without being submitted to judicial proceedings due to the lack of jurisdiction of the State where the aircraft lands.
• Under the Tokyo Convention, an offender cannot be held in restraint beyond the first stopover; so by the time the aircraft returns to the State of registration, witnesses may not be available
• The State of registration may not have a real connection to the incident in situations where the aircraft is leased and operated in a foreign jurisdiction.
• Similarly, when the victim or the alleged perpetrator is not its national, the State of registration may choose not to exercise its jurisdiction.
• The cost involved in bringing the victim and the witnesses back to its court may also influence a State's decision not to prosecute an unruly and disruptive passenger.
• Protocol came in to harmonize, at the international level, a list of offences that would be regarded as a common framework of reference.