What FKF poll protagonists said at Sports Disputes Tribunal

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Football Kenya Federation (FKF) president Nick Mwendwa (in blue) follows proceedings of a court case where the Sports Dispute Tribunal is sitting to determine a conflict between Football Kenya Federation and Sports Registrar at Milimani Law courts on February 25, 2020. [PHOTO COURTESY]

Football Kenya Federation petition against Sports Registrar at the Sports Disputes Tribunal always promised an epic battle of wit.

It did not disappoint as the protagonists went blow for blow in an absorbing encounter. SDT chair John Ohaga is set to deliver a verdict on March 17. Here is part of what was said at the Tribunal.

FKF’s prayers

 1. A declaration that the decisions and directives issued by the Respondent in her letters to FKF one dated 25th October, 2019 and two other dated 15th November, 2019 directing FKF to register county sports associations and to call off elections were in bad faith, unreasonable and unlawful.

2. A declaration that a branch of a national sports organisation is not synonymous with a county sports association and consequently, a national sports organisation has no obligation in law to register county sports associations but to create and maintain branches as an organisational unit as it may from time to time deem fit and as provided for in law;

3. A declaration that the 2017 FKF Constitution makes sufficient provision for the conduct of FKF elections in tandem with the Constitution of Kenya, 2010, the Sports Act, 2013 and as further stipulated in paragraphs (a), (b) , (c), (d) and (e) of the Second Schedule thereto.

4. A declaration that all the football clubs duly registered by FKF are eligible to participate in FKF elections at their respective levels of competition within FKF’s organisational structure be it at the National, County or Sub-County levels and more particularly, as provided for in the Constitution of Kenya, 2010, the Sports Act, 2013, 2017 FKF Constitution and the FKF Electoral Code;

5. A declaration that the Respondent shall neither register any county associations of FKF nor recognize or register any entity or person(s) as officials of FKF county associations by whatever designation;

6. An order directing the Respondent to accept and receive returns from FKF of the newly elected officials after the FKF elections as provided for in Rule 20(4) of the Sports Registrar Regulations, 2016.

What FKF said on:

Whether the FKF Branches ought to be registered as County Sports Associations and if so, whether such a requirement is mandatory and a prerequisite for the conduct of FKF elections;

Cross-Petitioners, the Petitioners in case No. 5, the Interested Parties and the Sports Registrar seem to be fixated on a theory that counties of FKF are analogous to the counties of the Republic of Kenya stricto sensu without due regard for the fact that:-

i. The Counties of FKF/Branches as well as Sub-counties of FKF/Sub-Branches are merely administrative units which are meant to promote and foster football activities throughout Kenya and not to delimit the operations of football activity per counties or sub counties;

ii. Precepts of football are more concerned about leagues and tournaments rather than geography and territories; and

iii. Football activities and football operations in Kenya transcend geographical territories as stipulated under the Constitution of Kenya in such a manner that it is not possible to delimit operations of football according to geographical units as constitutionally demarcated units of governance in public law.

The conduct of public participation prior to the FKF SGM held on 28th January, 2020;

In total, all the 20 Branches of FKF held the public participation process for the formulation of the FKF Electoral Code and in so doing their constituent 80/84 sub branches participated actively and robustly in adopting the proposed Electoral Code. Only Lamu North Sub-Branch (Coast Branch), Mombasa Sub-County (South Coast Branch), Taita-Taveta Sub-Branch (Chuka Sub-Branch (Lower Eastern Branch) failed to undertake the public participation meetings.

The constitution and validity of the FKF SGM held on the 28th January, 2020 and the resolutions thereof ;

On the 14th January, 2020 I issued a formal convocation to FKF members for a SGM in compliance with Article 31(4) of the 2017 FKF Constitution and attached to the convocation was the proposed Electoral Code (once again), names of the proposed Board Members and the agenda for the SGM.

The validity of the FKF Appeals Board in the upcoming FKF election process;

Section 7 of the FKF Electoral Code designates the FKF Appeals Committee as the forum for lodging any complaint in respect of decisions made by the Electoral Board. This designation is a choice that FKF members elected for the upcoming elections. Indeed, there is in place an independent FKF Appeals Committee duly constituted under the structures of FKF. Article 64 (1) (c) of the 2017 FKF Constitution establishes the FKF Appeals Committee which is one of the standing committees of FKF and under Article 67(2) of the 2017 FKF Constitution it is the Committee responsible for hearing appeals against all decisions determined by all committees of FKF including the Elections Board designated as the Electoral Committee under the Standard Fifa Electoral Code.

The role & relevance of the Fifa Standard Electoral Code in relation to FKF elections especially Article 4(3);

By a letter dated 10th February, 2020, Fifa wrote to FKF acknowledging receipt of the new Electoral Code and Electoral Board member’s names and while at that directed that FKF elections must be concluded by latest end of March, 2020. More importantly, Fifa in its letter underscored that the FKF Electoral Code is the sole binding document pertaining to the upcoming FKF elections as read together with the FKF statutes. To quote FIFA, “In other words, the Fifa Standard Electoral Code is of informative nature only.”

What appellants want (CBG Ouma)

 A declaration that the Special General Meeting of 28th January 2020 was not convened and constituted in accordance with the FKF Constitution 2012(or even the proposed FKF Constitution 2017). AND,

A declaration that the resolutions passed at the said meeting are null and void and of no legal effect. 

The notices convening the meeting is dated 14th January 2020. The notice is however dispatched on by email by Barry Otieno on the 16th January 2020. Barry Otieno has helpfully conceded these facts in his replying affidavit. That was two days short of the period required by Article 31(4). The 40 Branch officials who attended the SGA were elected on the 26th January 2016. The appellants contend that the branch official’s term in office expired on the 25th January 2020.

In paragraph 49 of his replying affidavit, Barry takes the position that there is nothing wrong with holding an AGM after the term in office of half of the delegates had expired because the tribunal excused a similar aberration in its ruling in SDT NO 6, 9 and 19 of 2015. 

A declaration that the proposed FKF 2020 Elections are illegal for non-compliance with mandatory provisions of the Sports Act 2013 and the directives of the Sports Registrar as to registration of County Associations and participating Clubs.

FKF does not even pretend to have complied. By its own letter dated 13th December 2019 FKF requested to be exempted from compliance with the provisions of the Sports Act and unequivocally committed to fully comply with the requirements as to Registration of County Associations and progressive compliance with other requirements of the Act.

A declaration that the  FKF has not complied with the orders of the Orders the Sports Disputes Tribunal in SDT NO 6,9 and 19 of 2015 on compliance with the provisions of the Sports Act 2013 before proceeding with elections and consequently, the FKF 2020 elections are in contempt of court unlawful null and void.

On December 22, 2015, the tribunal made a ruling in which it penalised the officials of football Kenya Federation for not complying with the orders of the Tribunal on compliance with the Sports Act. In its ruling the Tribunal expressed regret at the contemptuous attitude of the FKF and noted that the process of compliance was relatively simple. Four years later, the best that has been done is to secure the conditional registration of the Federation. There is no explanation whatsoever as to why there has been no compliance.

A declaration that the public participation on the 2020 FKF Electoral Code did not meet the constitutional threshold, and was in fact a sham, wherefore the adoption of the FKF Electoral Code 2020 is unconstitutional null and void.

“It is the case for the appellants in SDT NO 5 OF 2019 that the so-called public participation meetings were actually Branch Meetings at which only selected members were allowed to attend. The constitutional threshold for public participation was not been met.

A declaration that the Appeals process proposed in the electoral code does not meet the threshold of independence and impartiality contemplated in article 47 and 81 of the Constitution of Kenya 2010, Fifa Statutes, the Statutes of FKF and Fifa Standard Electoral Code, or indeed, the impugned FKF Electoral Code itself.

The present position takes appeals from the Electoral Board to a committee of the FKF. A committee of the FKF is a body of the Federation and cannot be said to be independent. In any event, by dint of Article 67 of the proposed FKF Constitution 2017, the jurisdiction of the Appeals Committee is restricted to appeals from Committees of the FKF. Article 67 provides, ‘the Appeals Committee is responsible for hearing appeals against all decisions determined by all committees.”  

The Electoral Board is not a committee of the FKF. Committees of the FKF are provided for in articles 45-66 of the proposed FKF Constitution 2017. The Electoral Board is not one such committee. The upshot of the foregoing is that the electoral process does not have a mechanism for appeals against decisions made by the Electoral Board. That leaves recourse to the Sports Dispute Tribunal as the only option for a party aggrieved by a decision of the Electoral Board. The timelines given for the electoral process cannot accommodate recourse to the sports tribunal.

What Milton sought to be addressed

Whether the Sports Registrar’s directives to FKF amount to threats: The registrar is acting in fidelity to the law as established under Article 46 of the Sports Act 2013, the Sports Registrar’s Regulations of 2016 as well as the principles of democracy enshrined under Article 81 of the Constitution of Kenya 2010

Citation: In the case of Republic v The Cabinet Secretary Hassan Wario Arero & another Ex-Parte Kipchoge Keino & 2 others where Justice Odunga stated: “The administrative bodies and Tribunals or boards must act within their lawful authority and an act, whether it be of a judicial, quasi-judicial or administrative nature, is subject to the review of the courts on certain grounds.”

What is expected of the elections of FKF and of other national sports organizations?

Compliance. What is expected of the elections of FKF and other national sports organisations in this regard is obvious and should not be a question to be entertained before the Tribunal – compliance. At the heart of this matter is the question of compliance and a federation that has failed to do so and now seeking to take short-cuts. The burden of compliance is one the Petitioner had the opportunity to deal with before the term of their officials expired; they had four years to do so but chose not to for reasons best known to them.

Citation: Raila Amolo Odinga, Stephen Kalonzo Musyoka vs IEBC, Chairperson (IEBC), Uhuru Muigai Kenyatta in Presidential Petition No. 1 of 2017:  “An election is a process.”

Whether the Petitioner’s officials’ term of office has expired and whether their continued stay in office to oversee elections is legal.

Officials of the Petitioner hold office for a term of four years, the immediate former officials having been elected at the Elective General Meeting of 10th February 2016.

Article 37 (e) of the FKF Constitution of 2017 states: “The term of office of the President and the National Executive Committee members is for four years. Their mandates shall immediately begin at the end of the Elective General Assembly of the FKF.”

Citation: Civil Suit No. 58 of 2004 (Salim H Sumra, Ismail Mohammed, Mohammed Omar vs Hussein Swaleh, Mohamed M Hatimy), Justice John Mwera, in reference to the term of office of the respondents in the case and the assertion that they can hold office past their term to oversee elections, ruled: “The defendants have no capacity as per the governing KFF constitution to run its elections or do anything because their time in office has expired. There is no great fun or pride in having a constitution, whatever the body, that cannot be adhered to.” Whether the Petitioner’s case and prayers amount to a call on the Tribunal to contravene law.

It would be catastrophic if this Tribunal would issue declaration that directives by the Respondent which are anchored on the law are mala fides, “unreasonable and unlawful”, this Tribunal would be sending a message that even its own decisions made within the law are of no effect because this Tribunal draws its mandate from the same statute that the Respondent draws from and are therefore twins in the context of their legal status.

The Cross Petitioners’ case (Nelson Odongo for Kerandi Manduku and Co. Advocates)

 Whether the 2017 FKF Constitution is invalid and not binding as it is not aligned with the Constitution of Kenya 2010 and the Sports Act 2013.

Argument: Currently, there are two sets of FKF Constitutions. The 2012 FKF Constitution that was used to register Respondent and the proposed 2017 FKF Constitution. We submit that the 2017 FKF Constitution lacks validity and the legal force to make it operational. The same is not recognised by the Sports Registrar and therefore not official and lacks legal validity and/or authority.

Whether the Electoral Board constituted at the FKF Special General Meeting of 28th January 2020 is unlawfully constituted as the board members do not satisfy the mandatory provisions of the Fifa Standard Electoral Code.

Citation: Article 4(3) of the Fifa Standard Electoral Code provides that: “The ordinary general assembly at which the committee is elected shall take place at least six months before the elective general assembly at which the executive body is elected.”

Article 3(3) of the Fifa Standard Electoral Code provides that: “The members of the committee shall be bonafide members of the association.”

FKF in the impugned SGM/A held on 28th January 2020 appointed one Kentice Tikolo as the chairperson, Patrick Onyango as the Secretary, Ali Hassan Kauleni, Alfred Ndinya and Samuel Karanja as members of the FKF Electoral Board, none of the said members of the said members are bonafide members of FKF and therefore the electoral board as constituted at the FKF SGM/A of 28th January 2020 is invalid.