By Suzanne Muthaura and Kenneth Kimachia*
Effective 5th September 2017, Kenya Airways Plc was granted approval to operate direct flights to and from the United States of America through a foreign air carrier permit issued by the US Department of Transport. The permit marks the latest development in open skies arrangements involving Kenya’s air transport services. Commencement of these direct flights is scheduled to take place on 28th October 2018 with an inaugural flight from Nairobi to New York.
The Convention on International Civil Aviation of 1944 (Chicago Convention) is the foundation of international air transport services. At its inception, it provided a complete modernization of the basic public international law of the air and birthed the International Civil Aviation Organisation (ICAO). The Convention is a source of law in Kenya pursuant to the Constitution. As a consequence of the Chicago Convention, the state parties further formulated certain agreements which led to the Nine Freedoms of the Air. These Freedoms are multilateral in nature, however their application (due to the general rule that every state has complete and exclusive sovereignty over the airspace above its territory) is accomplished bilaterally between states. It is well established customary international law that the possession of these Freedoms by a foreign airline depends either on a unilateral grant by a state, or on a bilateral agreement between the state of the airline and the other state.
This article will briefly look at the implementation of the main commercial Freedoms (3rd, 4th and 5th) towards facilitating or barring air transport connections between countries. One aspect will be to look at connections between Kenya and African countries while the other will look at Kenya and outside Africa.
Three Freedoms: Brief Outline
3rd Freedom-Passengers and cargo may be flown from the airline’s country to another signatory state.
4th Freedom- Passengers and cargo may be picked up in another signatory state and transported to the airline’s own country.
5th Freedom- Airlines may transport passenger and cargo between one signatory state and a third state; however, the flight must originate or terminate in the airline’s own country.
Kenya and Africa: ‘The Yamoussoukro Decision’
Kenya has signed bilateral air services agreements with countries including Ghana, Liberia, South Africa, amongst others. The application of the multilateral Yamoussoukro Decision (the Decision) is intended to make it easy for Africa-based airlines to operate freely within the continent without the need for bilateral air service agreements.
The liberalization of the African air space and increase in connections in Africa is meant to be actualized by the full implementation of the Decision. The World Bank has noted that many African countries still restrict their air services markets to protect the share held by state-owned air carriers. These restrictions have been argued to negatively impact air fares, safety records and air traffic growth. The Decision advocates for the free exercise of the Three Freedoms for passenger and freight air services by eligible airlines.
The application of the Decision in Kenya has been arguably lackluster. Going by a short comparison, it is still cheaper to fly to Dubai than to an African country such as Uganda next door. If fully applied, fare savings of up to 35% are expected for passengers flying within Africa.
The African Airlines Association, on its part has expressed its concerns about the lack of progress in the liberalization of market access within Africa. It has stated that procrastination in the implementation of the Decision is inhibiting the growth and competitiveness of African carriers. This view has been reiterated at its 48th Annual General Assembly (2016). In essence, air transport connections within Africa are arguably still being hampered by the delayed implementation of the Decision which intends on ensure free exercise of the Freedoms by airlines.
Kenya and Outside Africa: ‘Open Skies’ 
Kenya, and Africa at large has entered into open skies arrangements; the most prominent being with the USA. The approach here is to expand and remove restrictions to the Freedoms through a market-oriented approach. Ideally, airlines will decide which cities to serve, the frequency of flights, the equipment used, and the prices charged. Such arrangements, in our view, would have the effect of ensuring complete implementation of the Freedoms with minimum restrictions thereby enhancing liberalization of air transport.
Though executed in May 2008, the implementation of this arrangement between Kenya and the USA has arguably not taken place as fast as it should to ensure the full benefits of the Freedoms between the countries. It is only in 2017 that direct flights between the USA and Kenya received the go ahead to proceed by the US Federal Aviation Authority. The benefits that would have accrued such as greater connectivity and lower prices are yet to be achieved despite execution of this far reaching arrangement. To that extent, it can be argued that the open skies arrangement, though not hampering connections, has also not facilitated in increasing air connections due to other factors such as regulatory concerns that have delayed the ability of the countries to conduct direct flights.
It is important to note that although air transport is directly facilitated or hampered by the aforementioned agreements between states, the agreements are also affected by parallel concerns such as regulations, implementation, political will etc. However, the overarching element is that implementation of the agreements (bilateral or multilateral) will go a long way towards ensuring greater connectivity as initially intended by the Chicago Convention.
 Prof. Dr. Paul Dempsey, ‘The Chicago Convention as a Source of International Air Law’, 2015
One function of ICAO -planning and development of international air transport to ensure the safe and orderly growth of international civil aviation throughout the world
 International Air Transport Agreement and International Air Services Agreement
 Also known as air traffic rights
 Economic Commission for Africa, The Decision Relating to Liberalization of Access to Air Transport Markets in Africa, November 1999 adopted in July2000 by the Assembly of Heads of State and Government of the African Union
 InterVISTAS Consulting, Transforming Intra African Air Connectivity: The Economic Benefits of Implementing the Yamoussoukro Decision, 2014
 at its 38th Annual General Assembly (2006)
 refers to a bilateral or multilateral Air Transport Agreement, which liberalizes the rules for international aviation markets and minimizes (or eliminates) Government intervention: the provisions apply to passenger, cargo and combination air transportation on scheduled and charter services
 https://2001-2009.state.gov/r/pa/prs/ps/2008/may/105463.htm (US State department media note)
[*] Suzanne Muthaura is a Partner and head of the Corporate Practice Group at MMAN Advocates, a leading corporate law firm based in Nairobi, Kenya. She can be contacted via SMuthaura@mman.co.ke Kenneth Kimachia works closely with Suzanne, as an Associate. He can be reached via KKimachia@mman.co.ke