Reprieve for Kenya after botched law throws country into a spin

President Uhuru Kenyatta appends his signature to the Kenya Anti-Doping bill at State House Nairobi

Kenya’s near-miss of the Rio Olympics was a result of three omissions in the new anti-doping law.

The deletion of definitions of two terminologies, criminalising of an athlete’s doping offence and the inclusion of  the Attorney General in the Anti-Doping Agency of Kenya rendered the country non-compliant to the World Anti-Doping Agency (Wada) Code

However, it later emerged that the IAAF had cleared the country to compete in the Olympic Games. It had been a fretful 24 hours for Kenya after  Wada’s unexpected decision on Thursday to suspend Kenya’s national anti-doping body over flawed legislation passed by lawmakers last month. (See Separate on the back page).

During its Compliance Review Committee meeting  on Thursday, the  Wada declared Kenya non-compliant with Anti-Doping Code.

“We had an agreement with Kenya and the authorities on the legislation that we wished to be put in their law. During the Parliamentary process, there were some changes and some of those clauses are new, which therefore makes the current state of the law not compliant with the Code,” Wada President Sir Craig Reedie said.

The shocking news came as Kenya sat pretty after President Uhuru Kenyatta assented to the Anti-Doping Bill 2016 on April 22, a document the expectant nation thought had paved the way for its world beating athletes to participate at the Rio Olympics in Brazil in August.

The news that Kenya had been declared non-compliant touched off a wave angry reactions   from across the country, with many pointing an accusing finger at Sports Cabinet Secretary Hassan Wario for the casual manner he has handled the process to date.

The Standard on Saturday has learnt that Parliament expunged the term “Adverse Athlete’s Passport”, arguing it serves no purpose since it is not used subsequently in the text of the law.

The other deleted terminology is “Adverse Findings Analysis”, which is also not mentioned in the text of the law.

The third reason, The Standard on Saturday learnt, is the inclusion of the Attorney General in the Anti-doping Agency of Kenya (ADAK). According to Wada, the anti-doping agency is supposed to be independent of government. The presence of the AG in the agency was therefore seen to compromise its independence.

Sir Craig said the changes to the Anti-Doping Code during the law making process in Parliament conflicted with the internationally agreed Code and would create inconsistency.

“I am absolutely sure Kenyans will be disappointed with the decision,” he said.

According to an IOC Member and President of Archery, Mr Francesco Ricci Bitti, the deletion or introduction of new definitions creates inconsistency with the agreed code.
“These would mean that certain infractions would not have penalties,” Bitti said during a press briefing on Thursday.

Wada had given the drafters of the Bill a set of rules they wanted inserted in the Kenyan laws without alterations. Its argument is that there has to be a uniform practice and procedures in tackling the vice, which has threatened to bring Kenya’s athletics to its knees.

Article 43 of the Anti-Doping Act 2016 provides that: “A person, who contravenes any provision of this Act for which no specific penalty is provided shall be liable to a fine of not less than one million shillings or to imprisonment for a term of not less than one year or both such fine and imprisonment.”

This, however, is a general provision meant to set apart individuals other than athletes who will be handled under section 26 of the Act.
The Standard on Saturday understands Wada is uncomfortable with criminalising doping offences as it is not consistent with other countries.

But according to Prof Moni Wekesa, all is not lost because the government has given its assurance that the issue would be dealt with. 

“What has arisen is an interesting scenario because in the wisdom of Parliament, I think they felt no need of having terminologies in the Act that are not mentioned elsewhere.”

Regarding the inclusion of the AG in the Anti-doping Agency, Prof Wekesa said it is the standard practice in Kenya to have the State Law office represented in all parastatal boards.

But in what could be a saving grace, Sir Craig said they were disappointed, just as many Kenyans, that the authorities did not do as prescribed. e expressed hope that Kenya will resolve the problem in time to allow the country participate at the Rio Olympics.