AVIATION SECURITY

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

43A. Special protection of aircraft

PART IV
National Civil Aviation Security Committee and Security Programme

44. Continuation of the National Civil Aviation Security 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 IVA
National Air Transport Facilitation Committee, Aerodrome Facilitation Committee, National Air Transport Facilitation Programme and Aerodrome Facilitation Programme (ss 59A-59F)

59A. National Air Transport Facilitation Committee

59B. Functions of National Air Transport Facilitation Committee

59C. Meetings of National Air Transport Facilitation Committee

59D. Aerodrome Facilitation Committee

59E. National Air Transport Facilitation Programme

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,
Act 16, 2022,
S.I. 54, 2022.

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)

</a">1. Short title

This Act may be cited as the Aviation Security Act.

</a">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 such acts or attempted acts such as to jeopardise the safety of civil aviation, including but not limited to, the unlawful seizure or aircraft, destruction of aircraft in service, hostage-taking on board aircraft or aerodromes, forcible intrusion on board an aircraft, at an airport or on the premises of an aeronautical facility, introduction on board an aircraft or at an airport of a weapon or hazardous device or material intended for criminal purposes, use of an aircraft in service for the purpose of causing death, serious bodily injury, or serious damage to property or the environment, or the communication of false information such as to jeopardise the safety of an aircraft in flight or on the ground, of passengers, crew, ground personnel or the general public at an airport or on the premises of a civil aviation facility;

[16 of 2021, s 2(a).]

"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 (Cap. 71:01);

"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 Aviation Security Committee;

[16 of 2021, s 2(b).]

"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 (Cap. 24:01);

"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;

"in-flight security officer" means a person who is authorised by the government of the State of the Operator and the government of the State of Registration to be deployed on an aircraft with the purpose of protecting that aircraft and its occupants against acts of unlawful interference, but does not include persons employed to provide exclusive personal protection for one or more specific people on the aircraft, such as personal bodyguards;

[16 of 2021, s 2(d).]

"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;

"security restricted area" means areas of the airside of an airport which are identified as priority risk area where, in addition to access control, other security controls are applied, including all commercial aviation passenger departure areas between the screening checkpoint and the aircraft, the ramp, baggage make-up areas, and those areas where aircraft are being brought into service and screened baggage and cargo are present, cargo sheds, mail centres, airside catering and aircraft cleaning premises;

[16 of 2021, s 2(c).]

"security test" means a covert or overt trial of and aviation security measures which stimulates an attempt to commit an unlawful act;

[16 of 2021, s 2(d).]

"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.

</a">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.

</a">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)

</a">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,

commits the offence of hijacking and is liable to imprisonment for life.

</a">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;

(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 aircraft to cause damage to property or the environment; or

(i) 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.

</a">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;

(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;

(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.

</a">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;

(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).

</a">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.

</a">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 (Cap. 08:02).

(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.

</a">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

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) 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

(b) after the aircraft lands, restrain that person until such a time as—

(i) the he appropriate authority authorises the pilot-in-command to cause that person to disembark from the aircraft, or

(ii) the pilot-in-command can deliver that person or cause him or her to be delivered to the relevant officer.

(6) Any pilot-in-command who, without reasonable cause, fails to comply with the provisions of this section 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.

(7) Any crew member or any other person on board the aircraft shall, with the authority of the pilot-in-command, render assistance in restraining a person referred to under subsection (1); and that crew member or other person may take any of the measures specified under subsection (2) which he or she believes is necessary to protect the safety of the aircraft or persons and property on board that aircraft.

(8) Any person who, without reasonable cause, fails to render assistance under the provisions of subsection (7) 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.

(9) Any person who, whether by assault, intimidation or threat—

(a) interferes with the pilot-in-command or a crew member in the performance of his or her duties;

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