On August 16, 2022, the Civil Aviation Act 2022 ("CAA 2022") was enacted, repealing the Civil Aviation Act of 2006 "(CAA 2006"), and introducing significant changes to the Nigerian aviation industry. The new CAA 2022 covers various aspects, such as enhanced powers for the regulatory authority, establishment of new programs and facilities, domestication of new international conventions1, the establishment of State Safety Programme ("SSP'') and the implementation of Safety Management System ("SMS") among others. This article provides a comparative analysis of certain sections of the CAA 2006 with the CAA 2022 to provide insight into the new Act.
The recently implemented CAA 2022 has a wide-ranging applicability, covering individuals, aircraft, air operators, aerodromes, aeronautical products, and licensed aerodromes approved by the Nigeria Civil Aviation Authority ("the NCAA" or "the Authority").
1. Establishment and Autonomy of the NCAA
Similar to the provisions of the CAA 2006, Section 4(1) of the CAA 2022, specifically establishes a regulatory body called the Nigeria Civil Aviation Authority ("NCCA"). The CAA 2022 goes further to describe the NCAA as an "autonomous body" capable of discharging its duties and functions under the CAA 2022 independently.
2. Application of the Civil Aviation Act
Section 2(1) of the CAA 2022 provides that the Act's applicability extends to individuals holding licenses issued or validated by the NCAA, as well as various entities and activities within the Nigerian aviation sector, including but not limited to aircraft operators, aerodrome operators, aeronautical products, and consumers of aviation services. Furthermore, it encompasses both Nigerian-registered aircraft, irrespective of their location, and foreign-registered aircraft involved in operations within, to, or from Nigeria. This indicates that the Act's authority and responsibility covers a wide range of aviation-related stakeholders and operations within Nigeria. The CAA 2006 however, did not provide corresponding provisions.
3. NCAA as Sole Civil Aviation Regulator in Nigeria
While section 30(1) of CAA 2006 provides that the Authority may regulate air navigation, section 8(3) of the CAA 2022 specifically empowers the Authority to be solely (to the exclusion of others) responsible for the regulation of civil aviation in Nigeria.
4. Protection of Safety Data
Section 37 (1) of the CAA 2022 forbids the Authority from using safety data for purposes which are not safety related. Safety data can only be used by a relevant authority, as determined by the laws of Nigeria, that decides in a specific case, the benefits of disclosing or using the information outweigh the potential negative impact on aviation safety and security.
Safety data is defined as a set of facts or set of safety values collected from various aviation-related sources, which is used to maintain or improve safety. They include accident or incident investigations, safety reporting, continuing airworthiness reporting, safety studies and reviews etc2. This section of the Act ensures that safety data, which are sensitive information usually in the care of the Authority are not mismanaged or misused.
5. Removal of the Accident Investigation Bureau
The Accident Investigation Bureau ("AIB") established under Section 29(1) of the CAA 2006 was expunged in the CAA 2022. This is because the Nigerian Safety Investigation Bureau ("NSIB") has now been created under the Nigerian Safety Investigation Bureau Act 2022 to carry out the functions of the AIB. In this capacity, the NSIB has the authority to investigate serious incidents and accidents across the aviation, maritime, rail, and road sectors.
The NSIB is responsible for promoting transportation safety and conducting comprehensive and impartial investigations into transportation accidents and incidents in Nigeria. Its objective is to identify the likely causes of accidents and advocate for safety enhancements based on its findings.
The NSIB aims to improve investigations into the causes of transportation accidents, encompassing rail and maritime incidents, with the goal of offering valuable recommendations for the nation's benefit.
6. Regulation of Air Space
Section 30(2)(r) of the CAA 2006, granted powers to the Authority to make regulations exempting certain aircraft or persons from the provisions of the regulations made with respect to the use of navigable airspace in Nigeria without considering public safety and interest. However, Section 41(1) of the CAA 2022, empowers the Authority to only grant exemptions from any of the requirements of the regulations only when granting such exemption will not jeopardize public safety, security and interest.
7. Provision regarding Aviation Security
The CAA 2006 lacked provisions for the implementation of advanced passenger information and passenger name record data exchange. In contrast, Section 42(1)(d) of the CAA 2022 empowers the Authority to regulate the standards for the implementation of passenger information sharing and passenger data sharing between the departure and destination countries.
This new provision will greatly enhance security measures for the safety of passengers, enabling real-time information sharing between countries. It will also bolster the security of nations by swiftly intercepting illegal goods, nefarious activities, and individuals with criminal intent before they can gain entry.
8. Deployment of Personnel on Aircraft under Bilateral or Multilateral Agreements
Another significant change introduced by the CAA 2022 is the power given to the Authority to regulate the standards for the deployment of personnel on aircraft under bilateral or multilateral agreements to secure the aircraft in-flight and persons on board the aircraft. This provision is outlined in Section 42(1)(f) of the CAA 2022 and was absent in the repealed CAA 2006.
The provision demonstrates Nigeria's commitment to prioritizing the lives of passengers aboard a flight. It does this by ensuring that the personnel managing the flight under a bilateral or multilateral agreement are qualified and capable. The Authority is empowered to make regulations for their qualifications, numbers and the terms and conditions under which they can operate.
9. Domestication of more International Conventions
Section 30(1)(a) of the CAA 2006 gave powers to the Authority to make regulations for the domestication of the Convention on International Civil Aviation (the "Chicago Convention") 1944. Section 31(1)(a) of the CAA 2022 introduces a significant change to this provision by assigning the implementation of the Chicago Convention's provisions to the Director-General of the Authority.
In addition, the CAA 2022 extends the domestication of international conventions by adding three new conventions:3 the Tokyo Convention 1963, the Montreal Convention 1971, and the Montreal Convention 1991, which were not included in the CAA 2006. The inclusion of these new Conventions is outlined in Section 50 of the CAA 2022.
The incorporation of these conventions facilitates enhanced data exchange between departing and arriving countries, promotes aviation safety and security, and most importantly, empowers Nigeria, via the NSIB, to designate an expert to actively engage in any investigation, where Nigeria has a vested interest.
The Tokyo Convention (the "Convention on Offences and Certain other Acts Committed on Board Aircraft"), the Montreal Convention 1971 (the "Convention for the Suppression of Unlawful Acts against the Safety of Civil Aviation") and the Montreal Convention 1991 (the "Convention on the Marking of Plastic Explosives for the Purpose of Detection") are designed to safeguard the lives and safety of individuals aboard a civil aircraft. Their domestication assists in harmonizing Nigeria's civil aviation laws with international standards, portraying Nigeria as a country that prioritizes the welfare of passengers and citizens both home and abroad.
For example, Chapter 5 subsection 27 of the International Civil Aviation Organization ("ICAO") Annex 13 to the Convention on International Civil Aviation – Aircraft Accident and Incident Investigation grants states special interest in any accident involving its citizens. This ensures that in instances where Nigerian nationals are involved in air transport accidents in foreign jurisdictions, the National Transportation Safety Board ("NSTB") and the NSIB can work collaboratively to investigate the cause of the crash and possibly prevent the occurrence of another.
10. Security Surcharge Fee
Section 51 of the CAA 2022 introduces a security surcharge which is to be determined by the Authority and will be levied on each passenger ticket for international air travel originating from Nigeria. All proceeds from this surcharge will be exclusively allocated to enhancing aviation security in Nigeria. These provisions were not present in the repealed CAA 2006.
11. Bilateral Agreements
Section 68(1) of the CAA 2006 permitted the transfer of certain oversight responsibilities from the state of registry to the state of operator under Article 83 bis of the Chicago Convention.
The Chicago Convention established the ICAO, a specialized United Nations agency responsible for coordinating global air travel. The Chicago Convention sets out regulations for airspace, aircraft registration, safety, security, and environmental preservation, and outlines the privileges of the signatories in connection with air travel.4
However, Section 54(1) of the CAA 2022 has modified and expanded this provision. It adopts Article 83 bis of the Chicago Convention and provides that, so long as the Authority has a bilateral agreement with the Aeronautical Authority of another country, it can exchange or relinquish to that other country all or part of its oversight functions and duties with respect to the following:
- Article 12 on rules of the air;
- Article 30 on aircraft radio equipment;
- Article 31 on certificate of airworthiness; and
- Article 32(a) on licenses of personnel.
12. Registration of Interest in Civil Aircraft
Section 30(2)(a) of the CAA 2006, authorised the Authority to make regulations for the registration of aircraft in Nigeria. However, Section 59(1) of the CAA 2022 grants the Authority the power to regulate and make provisions specifically for the registration of civil aircraft or any interest therein in Nigeria. Additionally, Section 60(1) of the CAA 2022 introduces the requirement to record in the register of legal interest in aircraft, any title to or interest in aircraft, aircraft engines, propellers, or appliances intended for use in Nigeria.
Under Section 59 of the CAA 2022, the Authority is now empowered to create regulations regarding the registration of civil aircraft and any stake or interest in such aircraft. This encompasses activities such as purchase, lease, lien, and other related transactions. It enables the Authority to oversee all dealings involving civil aircrafts registered in Nigeria.
Persons who intend to access the register of legal interest in aircraft for the purpose of obtaining information are required to apply in writing to the Authority and pay the appropriate search fees as may be prescribed by the Authority.5
13. Establishment of State Safety Programme and implementation of Safety Management System
Section 62(1) and (2) of the CAA 2022 introduce the establishment of a State Safety Programme ("SSP") and Safety Management System ("SMS"). These additions, absent in the CAA 2006, prioritize proactive safety measures and risk management in the aviation industry. The SSP enhances national safety oversight, while the SMS ensures individual organisations implement robust safety management processes tailored to their operations. These provisions aim to foster a culture of safety, reduce incidents, and enhance public confidence in aviation.
13. Licensing of Foreign Air Operators
Section 99 of the CAA 2022 creates a novel provision, which requires foreign commercial air transport operators to secure a license from the Director General of the NCAA. The Authority holds the power to modify these licenses at its discretion, and any concerned party has the right to submit a protest or memorandum related to the application of a foreign commercial air transport operator.
The document issued to foreign air operators prior to commencement of operation in Nigeria is called the Document of Authorizations, Conditions and Limitations ("DACL"). This document is granted after the compliance of the foreign operator with all the requirements of the NCAA.
The NCAA requires the tendering of certain documents which present the aircraft as safe, secure and airworthy. The required documents also help to ensure that the promoters/owners of the business are competent and compliant with all regulatory requirements.
Conclusion
The CAA 2022 introduced several nascent provisions that were not present in the CAA 2006. These provisions are more forward thinking, and they prepare the civil aviation sector for further growth. In addition, they also elevate the Nigeria civil aviation sector to be in line with international standards. This is especially observed in the domestication of more international conventions and a more robust safety bureau covering more transportation sectors.
The Act prioritizes safety and includes numerous provisions focused on ensuring the safety of air passengers. These include but are not limited to the issuance of permits to foreign air operators, regulation of personnel deployment under bilateral or multilateral agreements, imposition of a security surcharge for international air travel to enhance aviation security, and the registration of interests in aircraft. These measures strengthen the monitoring and oversight functions of the Authority under the CAA 2022, emphasizing its commitment to safety in air travel.
Footnotes
1. The Act domesticated by reference four (4) additional international conventions which, although ratified prior to the coming into force of the Act, were undomesticated. These conventions are the Convention on Offences and Certain Other Acts Committed On Board Aircraft (the "Tokyo Convention") 1963; Convention for the Suppression of Unlawful Seizure of Aircraft (the "Hague Convention") 1970; Convention for the Suppression of Unlawful Acts against the Safety of Civil Aviation (the "1971 Montreal Convention") 1971; and Convention on the Marking of Plastic Explosives for the Purpose of Detection (the "1991 Montreal Convention") 1991.
2. Glossary of defined terms from the annexes to the Chicago Convention and ICAO guidance material
3. See footnote 1
4. https://en.wikipedia.org/wiki/Convention_on_International_Civil_Aviation
5. Regulation 4.2.1.6 of the Nigeria Civil Aviation Authority Regulations 2023
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
