CHAPTER 71:02
AVIATION SECURITY

 

ARRANGEMENT OF SECTIONS

 

   SECTION

 

 

 

PART I
Preliminary

 

   1.   Short title

 

   2.   Interpretation

 

   3.   Application of the Act

 

   4.   Objects of the Act

 

 

 

PART II
Offences against aviation safety

 

   5.   Hijacking

 

   6.   Endangering the safety of aircraft in service

 

   7.   Damaging an aircraft or navigation installation not in service

 

   8.   Acts of unlawful interference

 

   9.   Being in possession of a weapon in aircraft, etc.

 

   10.   Endangering service of civil aviation

 

   11.   Powers on suspicion of intended offence

 

   12.   Powers of pilot-in-command

 

   13.   Smoking and jeopardising good order and discipline on board

 

   14.   Offences against police officer, etc. at an aerodrome

 

 

 

PART III
Protection of Aircraft, Aerodromes and Air Navigation Installations against acts of unlawful interference

 

 

 

A. Powers of the Authority

 

   15.   Responsibility of Authority in relation to aviation security

 

   16.   Surveys, inspections and tests

 

   17.   Designation of authorised persons

 

   18.   Aviation security officers

 

   19.   Powers to access and inspect aerodromes, aircraft and operator's premises

 

   20.   Powers to require information

 

   21.   Power to impose restrictions in relation to aircraft

 

   22.   Searches at aerodromes

 

   23.   Searches by persons other than operator

 

   24.   Directions relating to safety and guarding against acts of violence of unlawful interference

 

 

 

B. General Provisions Relating to Directions

 

   25.   Matters to include in directions

 

   26.   Direction may be addressed generally

 

   27.   Scope of direction under this Part

 

   28.   Notice of objection to a direction

 

   29.   Notice of enforcement

 

   30.   Offences relating to notice of enforcement

 

   31.   Objection to a notice of enforcement

 

   32.   Civil responsibility in relation to a direction

 

   33.   Aircraft detention direction

 

   34.   Appeal against decision of Authority

 

 

 

C. Designation of Restricted Areas

 

   35.   Restricted areas

 

 

 

D. Provisions Relating to Air Navigation Installations

 

   36.   Application of notices and directions to navigation installations

 

 

 

E. Policing of Aerodromes

 

   37.   Prohibited items

 

   38.   Unidentified baggage, etc.

 

   39.   Power to stop and search persons, vehicles, etc.

 

   40.   Power to remove a person, vehicle or article from aerodrome

 

   41.   Designated aerodromes

 

   42.   Prevention of theft at designated aerodrome

 

   43.   Control of vehicles at aerodrome

 

 

 

PART IV
National Civil Aviation Security and Facilitation Committee and Security Programme

 

   44.   Continuation of the National Civil Aviation Security and Facilitation Committee

 

   45.   Functions of the Committee

 

   46.   Meetings of the Committee

 

   47.   National Aviation Security Programme

 

   48.   National Civil Aviation Security Quality Control Programme

 

   49.   Independence in the management of control programme

 

   50.   Aerodrome Security Committee

 

   51.   Aerodrome Operator Security Programme

 

   52.   Obligation of aerodrome operator

 

   53.   Aircraft Operator Security Programme

 

   54.   Regulated Agent Security Programme

 

   55.   Catering Operator Security Programme

 

   56.   National Aviation Security Training Programme

 

   57.   Operator Aviation Security Training Programme

 

   58.   Amendment of Security or Training Programme

 

   59.   Power to enforce compliance with Programmes

 

 

 

PART V
Miscellaneous

 

   60.   Exemptions

 

   61.   Compensation for measures taken under Part III

 

   62.   Service of documents generally

 

   63.   Regulations

 

   64.   Transitional provisions

 

   65.   Repeal of Cap. 71:02 and savings

Act 20, 1993,
Act 14, 2005,
Act 15, 2011,
S.I. 77, 2011.

An Act to provide for the protection and security of aircraft, aerodromes, air navigation installations and persons or property on board aircraft and at aerodromes and other matters connected with aviation security.

[Date of Commencement: 7th October, 2011]

PART I
Preliminary (ss 1-4)

 

1.   Short title

   This Act may be cited as the Aviation Security Act.

 

2.   Interpretation

   (1) In this Act, unless the context otherwise requires-

   "act of violence" means any act which would constitute the offence of assault, murder, attempted murder or manslaughter, or any other act of which violence or threat is an essential ingredient;

   "acts of unlawful interference" means an act or acts; or attempted act or acts intended or likely to jeopardise the safety of civil aviation;

   "aerodrome" means a defined area on land or water intended to be used either wholly or in part for arrival, departure and surface movement of aircraft and includes airport;

   "aerodrome operator" means-

 

   (a)   in case of an aerodrome, the person responsible for the management, administration and operation of an aerodrome or the agent or representative of that person;

 

   (b)   in the case of an air navigation installation which does not form part of an aerodrome, the person in charge of that air navigation installation, and includes an employee, agent or representative of that person;

   "aircraft registered or operating in Botswana" means any aircraft which is either-

 

   (a)   an aircraft registered in Botswana; or

 

   (b)   an aircraft not registered in Botswana which is, for the time being, allocated for use on flight and will for that purpose land at or take off from one or more aerodromes in Botswana;

   "air navigation installation" means any building, works, apparatus or equipment used wholly or mainly for the purpose of assisting air traffic control, or as an aid to air navigation, together with any land contiguous or adjacent to that building, works, apparatus or equipment and used wholly or mainly for that purpose;

   "article" includes any substance, whether in solid or liquid form or in the form of a gas or vapour;

   "authorised person" means a person designated under section 17 to perform any act, function or duty;

   "Authority" means the Civil Aviation Authority of Botswana established under the Civil Aviation Act;

   "aviation security" means human and material resources intended to safeguard civil aviation against acts of unlawful interference and acts of violence;

   "aviation security officer" means a person employed by the Authority or aerodrome operator as an aviation security officer or any other person employed in that capacity under section 18;

   "Committee" means the National Security and Facilitation Committee;

   "convention country" means a country in which the Tokyo, Montreal and Hague Conventions are in force;

   "crew member" means a person performing the duties of flight crew or cabin crew member on an aircraft in flight or service;

   "designated aerodrome" means an aerodrome designated as such under section 41;

   "explosive" means any substance or mixture which is used or manufactured for purposes of producing a practical effect of explosion;

   "firearm" includes arms, ammunition, air pistol or air gun as defined under the Arms and Ammunition Act;

   "Hague Convention" means the Convention for the Suppression of Unlawful Seizure of Aircraft signed at the Hague on the 16th of December, 1970 as last revised or amended;

   "hazardous device or substance" means-

 

      (i)   any explosives or articles manufactured or adapted to have the appearance of explosives, whether in the form of a bomb or a grenade, or anything which appears as such, whether capable of explosion or not;

 

      (ii)   any article or substance including biological or chemical agents made or adapted for use or capable of being used to cause injury, incapacitate a person or destroy property;

   "Montreal Convention" means the Convention for the Suppression of Unlawful Acts against the Safety of Civil Aviation signed at Montreal on the 23rd of September, 1971 as last revised or amended;

   "operator" includes an aerodrome operator, an aircraft operator, a regulated agent and a catering operator;

   "pilot-in-command" means the pilot designated by the aircraft operator, or in the case of general aviation, the owner, as being in command and charged with the safe conduct of a flight;

   "property" includes any land, building, works, aircraft, vehicle, baggage, cargo or other article of any description;

   "regulated agent" means an agent, freight forwarder or any other entity or person who conducts business with an aircraft operator and provides security controls that are accepted or required by the Authority in respect of cargo, courier and express parcels or mail;

   "restricted area" means any area of an aerodrome or an air navigation installation which does not form part of an aerodrome, that is identified as an area to which access is restricted by its operator under section 35;

   "Tokyo Convention" means the Convention on Offences and Certain Other Acts Committed on Board Aircraft signed in Tokyo on the 14th of September, 1963; as last revised or amended;

   "weapon" includes any firearm or article which is capable of being used in such a manner likely to cause injury;

   (2) For the purposes of this Act-

 

   (a)   an aircraft is in flight from the moment all its external doors are closed following embarkation to the moment when at least one of the doors is opened for disembarkation, but in the case of forced landing, to the moment the appropriate authority takes over responsibility for the aircraft and the persons and property on board; and

 

   (b)   an aircraft is in service from the pre-flight preparation of the aircraft until 24 hours after the aircraft lands, having completed that flight, including the period the aircraft is in flight.

 

3.   Application of the Act

   (1) This Act shall not apply to State aircraft.

   (2) State aircraft includes-

 

   (a)   aircraft used or commanded by the Botswana Defence Force, the Botswana Police Service, Directorate of Intelligence and Security or customs service;

 

   (b)   aircraft used in the military, security, customs or police services of a foreign State.

 

4.   Objects of the Act

   The objects of the Act are-

 

   (a)   to provide for the safety of passengers, crew members, ground personnel and the general public and property involved in aviation;

 

   (b)   to prevent and safeguard against acts of violence or acts of unlawful interference with aviation and to ensure that appropriate action is taken when interference occurs or is likely to occur;

 

   (c)   to develop and implement practices and procedures which promote secure and reliable aviation services within, to and from Botswana; and

 

   (d)   to generally protect passengers, crew members, ground personnel, aircraft, airports, aerodromes and other aviation installations.

PART II
Offences against aviation safety (ss 5-14)

 

5.   Hijacking

   Any person who, by use of force, threats, other form of intimidation or any technological means-

 

   (a)   seizes or takes control of the aircraft; or

 

   (b)   attempts to seize or take control of the aircraft,

 

 

6.   Endangering the safety of aircraft in service

   Any person who-

 

   (a)   destroys or causes damage to an aircraft which is likely to endanger the safety of the aircraft;

 

   (b)   performs an act of violence against any person on board an aircraft, thereby endangering the safety of an aircraft;

 

   (c)   takes hostage of any person on board an aircraft;

 

   (d)   places or causes to be placed any weapon, hazardous device, or substance on an aircraft which is likely to endanger the safety of an aircraft;

 

   (e)   subject to subsection 8(4), knowingly communicates false information to a responsible officer, thereby endangering the safety of an aircraft;

 

   (f)   destroys or damages any air navigation installation or interferes with its operation; thereby endangering the safety of an aircraft;

 

   (g)   uses an aircraft for the purpose of causing death or bodily injury;

 

   (h)   uses an uses an aircraft to cause damage to property or the environment; or

 

   (i)   uses an performs any act which is intended or is likely to endanger the safety of that air navigation installation or aircraft in service or in flight, or renders it incapable of operation or service,

commits an offence and is liable to imprisonment for life.

 

7.   Damaging an aircraft or navigation installation not in service

   (1) Any person who unlawfully and intentionally, destroys or damages any aircraft which is not in service or any air navigation installation which may not affect an aircraft in service, commits an offence and is liable to a fine not exceeding P5 000 000, or to imprisonment for a term not exceeding 10 years, or to both.

   (2) Any person who-

 

   (a)   attempts to commit an offence under subsection (1); or

 

   (b)   is an accomplice to a person who commits or attempts to commit the offence under subsection (1),

commits an offence and is liable to a fine not exceeding P5 000 000, or to imprisonment for a term not exceeding 10 years, or to both.

 

8.   Acts of unlawful interference

   (1) Any person who, at any aerodrome or air navigation installation-

 

   (a)   forcefully seizes an aircraft;

 

   (b)   introduces any weapon or hazardous device or substance which is intended or is likely to be used for a criminal purpose;

 

   (c)   forcefully intrudes on an aircraft; or

 

   (d)   communicates false information intended to jeopardise the safety of or cause panic to passengers, crew members, ground personnel or the public,

commits an offence.

   (2) Any person who unlawfully and intentionally interferes, destroys or damages any property used for the provision of air navigation service, including any land, building, boat, apparatus or equipment whether on board an aircraft or elsewhere, and the interference, destruction or damage is likely to endanger the safety of an aircraft in service or of any human life, commits an offence.

   (3) Any person who communicates to a responsible authority any information which is misleading or deceptive in a material particular, where the communication endangers or is likely to endanger the safety of an aircraft in service or of any person, commits an offence.

   (4) It shall be a defence for a person charged with an offence under subsection (3) or section 6(e) to prove that-

 

   (a)   he or she believed and had reasonable ground to believe that the information was true; or

 

   (b)   when he or she communicated the information, he or she was lawfully employed to perform duties which included the communication of information and communicated the information in good faith in the performance of those duties.

   (5) For the purposes of subsection (1)(b) weapon or hazardous device or substance includes-

 

   (a)   any firearm or article which appears as such, whether capable of being discharged or not;

 

   (b)   any explosives, manufactured or adapted bomb, grenade or anything which appears as such, whether capable of explosion or not;

 

   (c)   any article marked or labelled as an explosive; and

 

   (d)   any other article or substance, including biological or chemical agents, made or adopted for use or capable of being used to cause injury, incapacitate a person or destroy or damage property.

   (6) Any person who commits an offence under subsections (1), (2) or (3) is liable to imprisonment for life.

 

9.   Being in possession of a weapon in aircraft, etc.

   (1) Any person who, without lawful authority or reasonable excuse, is in possession of a weapon, hazardous device or substance which is likely to be used for a criminal purpose-

 

   (a)   in any aircraft registered in Botswana, whether at a time when that aircraft is in Botswana or not;

 

   (b)   in any aircraft which is not registered in Botswana at a time when it is in, or in flight over Botswana;

 

   (c)   in any part of an aerodrome in Botswana; or

 

   (d)   in any air navigation installation in Botswana which does not form part of an aerodrome,

commits an offence and is liable to a fine not exceeding P5 000 000, or to imprisonment for a term not exceeding 10 years, or to both.

   (2) For the purpose of this section, a person shall be deemed to have possession of a weapon, hazardous device or substance in an aircraft, aerodrome or air navigation installation where the weapon or hazardous device or substance or an article in which it is contained has been brought or caused to be brought-

 

   (a)   in the aircraft, by that person as part of his or her baggage or as forming part of his or her other property carried on that flight; or

 

   (b)   in an aerodrome or air navigation installation, by that person as part of his or her baggage or as forming part of his or her other property to be carried on a flight from that aerodrome in which he or she is also to be a passenger.

   (3) Nothing in subsection (2) shall be construed as limiting the circumstances in which a person, would, apart from that subsection, be regarded as having in his or her possession an article referred to in subsection (1).

 

10.   Endangering service of civil aviation

   (1) Any person who, unlawfully and intentionally, using a weapon, hazardous device or substance-

 

   (a)   performs an act of violence against any person at an aerodrome serving civil aviation, which act causes or is likely to cause serious injury or death;

 

   (b)   destroys or seriously damages the facilities of an aerodrome serving civil aviation including an aircraft parked at the aerodrome or aircraft, which act endangers or is likely to endanger the safety of the aerodrome or aircraft; or

 

   (c)   disrupts the services of an aerodrome serving civil aviation which disruption, endangers or is likely to endanger the safety of the aerodrome,

commits an offence and is liable to imprisonment for life.

   (2) Any person who-

 

   (a)   attempts to commit an offence under subsection (1); or

 

   (b)   is an accomplice to a person who commits or attempts to commit the offence under subsection (1),

commits an offence and is liable to imprisonment for life.

 

11.   Powers on suspicion of intended offence

   (1) Where any police officer, aviation security officer or an authorised person has reasonable grounds to suspect that a person-

 

   (a)   about to embark on an aircraft in Botswana; or

 

   (b)   on board an aircraft,

intends, in relation to that aircraft, to commit an offence under this Part of the Act, that police officer, aviation security officer or authorised person may prevent that person from embarking on or remove him or her from that aircraft.

   (2) A police officer, aviation security officer or authorised person who prevents a person from embarking an aircraft or removes a person from an aircraft under subsection (1) may arrest that person without a warrant and detain him or her in accordance with the Criminal Procedure and Evidence Act.

   (3) Any person who intentionally obstructs or impedes any police officer, aviation security officer or authorised person acting under subsection (1) commits an offence and is liable to a fine not exceeding P2 500 000, or to imprisonment for a term not exceeding five years, or to both.

 

12.   Powers of pilot-in-command

   (1) Where a pilot-in-command of an aircraft in service or in flight in Botswana has reasonable grounds to believe that a person on board that aircraft is performing or is about to perform an act which-

 

   (a)   is intended or is likely to jeopardize or endanger the safety of that aircraft in flight;

 

   (b)   may jeopardise good order or is likely to cause panic to passengers and crew members on board an aircraft; or

 

   (c)   constitutes an offence under any law in force in Botswana or the country in which the aircraft is registered,

that pilot may take such reasonable steps as may be necessary to protect the safety of the aircraft or of persons and property on board that aircraft and to maintain good order and discipline.

   (2) The pilot-in-command may, in the exercise of the powers under subsection (1)-

 

   (a)   restrain the suspected person;

 

   (b)   cause that person to disembark or be removed from the aircraft;

 

   (c)   deliver that person to a police officer or immigration officer, where the aircraft is in Botswana and where the aircraft is in a convention country or any other country, to an officer whose functions correspond to those of a police or immigration officer in Botswana; or

 

   (d)   uses an take any other action that he or she may deem fit.

   (3) Where the pilot-in-command restrains a person under subsection (2)(a), the restraint shall cease as soon as the aircraft lands at an aerodrome unless, before or soon after landing, the pilot- in-command notifies or causes to be notified, the appropriate authority in the country where the aircraft is landing that a person on board the aircraft is under restraint, giving reasons for the same and in that case the provisions of subsection (5)(b) shall apply.

   (4) Where the pilot-in-command causes any person to disembark or to be removed from the aircraft under subsection (2)(b), he or she shall, in writing, report to-

 

   (a)   the police and immigration officers at the country of disembarkation; and

 

   (b)   the diplomatic or consular office of the country of nationality of the person involved,

giving the facts in details and reasons for the action taken.

   (5) Where the pilot-in-command decides to deliver any person to the relevant officer under subsection (2)(c), he or she shall-

 

   (a)   before the aircraft lands at the aerodrome or soon thereafter inform that relevant officer of the decision taken, in writing giving reasons for the decision; and

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