The Football Kenya Federation (FKF) has cancelled all football activities in the country at a time when its elections are the talk of the town.
The decision by the Federation boss Nick Mwendwa has elicited debate with some of his competitors describing the move as one pulled to gain political mileage in the race. In this piece, lawyer Ochusti Japheth Munyendo gives his opinion on the impasse between FKF officeholders and the aspirants who want to oust Mwendwa from his seat.
'Itching for change that would imaginarily usher Kenya to its Football Canaan after decades of stunted growth, most Stakeholders in the local Football Industry are apprehensive that the journey may after all delay. Accordingly, the wave of confusion and uncertainty that have marred the transition and the process thereto remains cancerous to the Kenyan Football Governing Regime. With change strictly guaranteed via Elections, the feeling is perhaps fuelled by successive cancellation of the Elections by the Sports Disputes Tribunal.
What was touted to be a formal Elections Process is haunting the Football Kenya Federation and Aspirants. Twice, the Federation has been indicted by the Sports Disputes Tribunal for the planning of an Electoral process that flagrantly falls below the minimum Constitutional threshold
7th December 2019 Elections
Article 27(5) of the FKF Constitution provides that Elections shall be conducted first at the County level, then the National level and finally, at the sub-county level. In its initial timetable, FKF had scheduled for the explosive National level elections to be held on 7th of December 2019. Note that the voided Branch Elections had taken place on 26th of November 2019.
In revoking the validity of the National and Branch Elections the Tribunal held that FKF did not exhaustively engage its stakeholders in the run-up to the polls. Further, the Tribunal was categorical, that Electoral Board was improperly constituted thus the process could not proceed as anticipated by the Federation.
The Tribunal ordered FKF President Nick Mwendwa, his Deputy Doris Petra, and the National Executive Committee (NEC) members to remain in office to facilitate fresh elections, lending credence to the President of Supreme Court of Kenya who stated, “An election is not an event, it is a process from the beginning to the end.’
17th March 2020 Sports Disputes Tribunal Decision
On 3rd February 2020, cornered and nervous by the Sports Registrar’s hard-line stance in relation to preparedness for the Elections, FKF hurriedly moved to the Tribunal seeking for an avalanche of declarations. Different interested parties were enjoined with this culminating into the 17th March 2020 when the verdict was issued. Besides making a Request to FIFA to form a Normalisation Committee and making a host of declarations, the tribunal declared that;
a) Appeals Board and the Electoral Board were validly in place
b) Term of the National Executive Committee had come to an End
c) Eligibility criteria at Section 4 of the 2020 Electoral Code was a gross violation of the principle of free and fair elections contemplated by Section 46 (6) as read with Paragraph (d) of the Second Schedule to the Sports Act and Article 81 of the Constitution of Kenya 2010
FIFA out-rightly spurned the formal request to form the Normalisation Committee while FKF failed to appeal any of the Tribunal’s decisions aggrieved with. As such, the tribunal on 24th of April 2020, in appreciating the importance of the need to have elections, invited representations from parties on how to proceed forward.
I am not privy to what parties submitted but I am of the view that there’s a simple way out of the debacle. I hold that Elections must be held within the confines of the governing the Law. The latter being, Constitution of Kenya, The Sports Act and the Football Kenya Federation Constitution given that the Electoral Code was impugned. FKF remains a bona fide organization registered in compliance with Section 46(5) of the Sports Act.
Prior to assenting to its formal request to be registered, the Sports Registrar must have thoroughly, fairly and diligently scrutinized the Federation’s Constitution. The Sports Act demands that Sports Organizations in their respective Constitutions must have provisions on elections that are in compliance with the Second Schedule paragraph a, b,c,d,e and g.
Unless FKF or any of its surrogates are benefitting from the stalemate, I propose that FKF must boldly rise above petty partisan interests and advocate for Elections to be conducted under the provisions of Constitution given that its sanctity has never been an issue contested.
How would this be attained given that the Tribunal has poked holes at the Regulations governing the conduct of the Electoral process? The Electoral Code is ancillary to FKF Constitution with the latter reigning supreme.
The Tribunal was unequivocal, stating that the Term of the FKF National Executive Committee herein NEC had come to an end. NEC’s powers are accordingly designed in a manner that casts it out as the executive limb of FKF. Article 39(1)(b) of the FKF Constitution grants NEC powers to prepare and even convene the Annual and Special General Assembly of FKF.
The General Assembly is a meeting where Members of FKF regularly convene. It represents the supreme and legislative authority of FKF and has powers under Articles 24(a) and 32(1) of FKF Constitution to amending it or the Regulations Governing the Application of the Constitution.
Moreover, Article 27 (3) of the FKF Constitution provides that Elections shall be held in accordance with the Electoral Code. Given that Section 4 of the Electoral Code previously crafted in a way to aid the application of the FKF Constitution was found to be inconsistent to/with Article 81 of the Constitution of Kenya, our natural expectation would be that only an amendment would regularise the unconstitutionality.
Even for mere preparation of Electoral Laws, the proposals emanating from the NEC to the General Assembly for adoption. But with the absence of NEC, it would be a pipe-dream to even dare entertain a thought of amending the Electoral Code. The Executive wing of FKF is non –existent. The effect is that neither can the General Assembly summon itself nor can it jumpstart any amendment processes.
Interestingly, Article 27(1) of the FKF Constitution gives an Independent Electoral Board powers to conduct FKF Elections. The Sports Disputes Tribunal has upheld the existence of the current Electoral Board and Appeals Board.
In its words, it stated that the Electoral and Appeals Board are validly in place. ‘Logically, this means that the Electoral Board as constituted is not in place oversee Lipala dance Competitions but to conduct the Elections. Which begs the question why would there be an Electoral Body without the Elections?
With an Electoral Board in place but an invalidated Electoral process, let FKF push to invoke Article 37(l) of its Constitution. It provides that, ‘FKF elections shall be governed by the Electoral Code proposed by the National Executive Committee and adopted by the General Assembly in an Annual General Meeting, were not provided for in the Electoral Code, FIFA Statutes on elections shall prevail.’
As previously enumerated above, the FKF NEC is non-existent, no one can summon the General Assembly to ratify an Electoral code. Ant attempt to would be illegality. What harm would FKF suffer if FIFA statutes prevail? To what extend would Nyamweya and his cohorts suffer if they allowed FIFA statutes to be the governing regulations? An observer may ask if the previous Electoral code has been invalidated how FKF would comply with the aforesaid provision?
In his wisdom, the drafter of the FKF Constitution anticipated an endless circus and catastrophic power games machinated by some powerful football barons stemming from electoral code. He must have had a premonition that Electoral code could be an excuse to hinder a legitimate electoral process. Thus the very reason he must have included the proviso to allowing FIFA Statutes to prevail. In essence, the provision remedies instances where a deadlock or FKF fails to promulgate Electoral Laws.
Actually, this provision paving way for FIFA statues to prevail in the absence of Electoral code is a huge reprieve from the constant ruckus of never-ending litigation that some flippant and vexing parties have relegated the Country too. Let parties be advised accordingly; THAT LITIGATION HAS TO COME TO AN END. Dispute or case after another may not benefit Kenyan Football After all. Most FKF By-Laws borrow heavily from FIFA statutes.
If FIFA statutes are in consonance with the Constitution of Kenya, let the Tribunal urge parties participate in the Elections as provided for in Article 37(l) of the FKF Constitution.'
(The writer is an Advocate of the High Court of Kenya and gives legal, diagnostic commentaries on Sports matters in Kenya)