The Draft Kenya Space Bill, 2024

The following are our views on the draft Kenya Space Bill, 2024:-

1. Definition of outer space (section 2)

The definition of “outer space” does not appear to be very clear. It is not clear, for example, what the word “universe” means and where this “universe” starts or ends. The definition seems more political than practical.

It is true that the said definition may have derived from the principle propounded in article 2 of the United Nations Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, including the Moon and Other Celestial Bodies (the Outer Space Treaty) done in London, Moscow and Washington, D.C., on the 27th of January, 1967, which provision provides as follows:

Outer space, including the Moon and other celestial bodies, is not subject to national appropriation by claim of sovereignty, by means of use or occupation, or by any other means.

The problem with the definition in current section 2 of the Bill is firstly, it is not clear where “outer space” begins and secondly, the definition is only good as long as the countries agree to abide by article 2 of the Outer Space Treaty. If, for any political reason, certain countries decide to violate international law and actually appropriate areas of “outer space”, Kenya’s definition of “outer space” will consign us to the nations that have accepted such appropriation. Violation of international law is nothing new, e.g., Russia’s intervention in Ukraine. We should not put our stamp of approval to such violations. In any case, customary law develops with the state practice considered legally binding.

Recommendation
It is recommended that maybe the definition of “outer space” should be more physical than political and should, therefore in the case of Kenya focus on the area where our atmosphere ends and should, thus, read as follows:

“Outer space” means the expanse that exists beyond the Earth’s atmosphere and includes celestial bodies, such as the moon. For greater clarity, “outer space” is not subject to national appropriation by claim of sovereignty, by means of use or occupation, or by any other means

2. Section 6 has got a section 6 (1).

Section 6 of the Bill consists of clause (1), but there is no clause (2). This appears to be a typographical error.

Recommendation
Correct the typographical error

3. The Board has too many Government functionaries and is a bloated Board

The Board in section 8 has too many Government functionaries making it a bloated Board. There appears to be too much focus on military and internal security personnel (see the current section 8 (1) (b), (c) and (d) despite the provisions in current sections 4, 6, 7 and 20 of the Bill which focus on peaceful uses of “outer space”).

The appointed Board members are too few and there should be six appointed Board members.

Recommendation
• Limit the Government functionaries to the following:-

(a) the Principal Secretary in in the ministry for the time being responsible for matters relating to space science or his representative;
(b) The Principal Secretary in the ministry for finance or his representative;
(c) The Attorney-General or his representative.

• Increase the members appointed under the current section 8 (1) (j) of the Bill to six members.

4. Appointments of Board members should be subject to vetting by the National Assembly

Article 10 of the Constitution requires public participation in all aspects yet public participation has rarely, if ever, been practiced in the appointment of Board members. This is the reason why Board appointments are political appointments with election losers and other political cronies of the executive being appointed to Board positions to run down the state corporations.

Recommendation

Subject appointments of the members under the current section 8 (1) (a) and 8 (1) (j) of the Bill to the approval of the National Assembly. As such, the following amendments should be considered:

• The current section 8 (1) (a) should be amended by adding the words, “Subject to clause (2)” after the word “President”.

• The current section 8 (1) (j) should be amended by adding the words, “Subject to clause (2)” after the word “Cabinet Secretary”.

• The current section 8 (2) of the Bill should be revised to read as follows:

(i) The President or the Cabinet Secretary, as the case may be, shall nominate, and with the advise and consent of the National Assembly appoint, the members under section 8 (1) (a) and (j).

(ii) The appointment of members under section 8 (1) (a) and (j) shall be by name and by notice in the Kenya Gazette

5. Experience of Board members appointed under the current section 8 (1) (a) and 8 (1) (j) Should be revised

The experience of Board members should be revisited as certain professions are left out, which should be the case. For example, space law is governed by a raft of treaties and quickly developing customary law and there is no reason for experience in “law” to be left out.

Recommendation

Revise the experience of Board members appointed under the current section 8 (1) (a) and 8 (1) (j) of the Bill to include other relevant professions.

6. The Constitutional role of the Salaries and Remuneration Commission

The Constitutional role of the Salaries and Remuneration Commission (SRC) under article 230 (4) of the Constitution is to advice on the remuneration and benefits.

Recommendation

The current section 13 and 19 of the Bill should be re-drafted with article 230 (4) of the Constitution, as read with article 3 of the Constitution in mind.

7. The experience of the Director General under section 15 (2) (d) should be revised

The experience of the Director-General should be revisited as certain professions are left out which should not be the case. For example, space law is governed by a raft of treaties and quickly developing customary law and there is no reason for experience in “law” to be left out.

Recommendation

Revise the experience of the Director General to include other relevant professions.

8. The word “sus” appearing in subsection 23 (4), should be replaced with the word “sub”

Subsection (4) contains a typographical error.

Recommendation
Correct the typographical error. The word “sus” appearing in subsection 23 (4), should be replaced with the word “sub”

9. Primary, tertiary section 26 (4) of the Bill

The current section 26 (4) of the Bill reads as follows:

The Agency shall promote and support space education in primary and tertiary schools.

This seems to have left out secondary schools.

Recommendation

The section should be revised to include secondary schools and should read as follows:

The Agency shall promote and support space education in primary, secondary and tertiary schools.

10. Fines not having other penalties

The fines enumerated under sections 23, 25 (5), 27 (8), 30 (2), 35 (3) and 49 do not have other penalties.

Recommendation

The fines enumerated under sections 23, 25 (5), 27 (8), 30 (2), 35 (3) and 49 should contain other custodial penalties in the alternative, e.g., an appropriate number of years imprisonment.

11. Attempt to lock out courts is unconstitutional

Whilst alternative dispute resolution is encouraged under article 159 of the Constitution, the attempt to lock out courts under the current section 47 (2) of the Bill is unconstitutional.

Recommendation

Dispute resolution should include recourse to the courts.

The draft Space Bill, 2024 is available on the following link http://www.okadvocates.com/blog/wp-content/uploads/2024/09/REVIEWED-SECONDDRAFTKENYASPACEBILL2024.pdf