Golf club ordered to reinstate expelled women members
By WAHOME THUKU
| March 24th 2014
BY WAHOME THUKU
Limuru, Kenya: Limuru Country Club is a private members club started in the 1920s. Golfing is the dominant activity in the club but has other facilities such as bowling, cricket and swimming.
On December 18, 2012, the Board of Directors amended the club by-laws and exempted the lady golfers from participating in the general meeting and electing members of the golf committee.
The argument was that since the golf committee was a “male only affair”, only male members would be allowed to participate. Lady golfers would be allowed to attend as guests.
The amendment followed an altercation between the directors and a section of lady golfers led by Rose Mambo, Martha Vincent and Caroline Ngugi.
Despite their protests, the directors met on December 22, 2012 and held elections without any vote from the lady golf members.
On January 14, 2013 the board met again and passed a vote of no confidence in Ms Mambo as the vice chairlady of the club. She subsequently lost her position as the chair of the disciplinary committee.
Ms Vincent and Ms Ngugi were suspended for three weeks and on January 22, 2013 they were suspended for six months and one month respectively for alleged misconduct.
On January 24, the Kenya Ladies Golf Union (KLGU) suspended them as well. They filed a petition at the High Court on March 12, 2013 challenging the decision.
They sued the club, its director and the Attorney General. They also sued officials of the Kenya Golf Union (KGU) and the KLGU both of which regulate the game of golf in Kenya.
The High Court temporarily lifted the expulsion, pending the hearing and determination of the case. By consent of the parties, the court appointed Mwaniki Gachoka and Dorcas Mbalaya to mediate the dispute but the initiative failed.
Three judges were appointed to hear the case. The court was informed that Ms Vincent had withdrawn her case. Through their lawyer Philip Murgor, the petitioners argued that the club’s Articles of Association granted every member the right to vote. They were all equal to other male members in terms of admission and subscriptions.
The petitioners claimed that the by-law was only made three days to the election’s day and only communicated to some members hence they did not have a chance to object.
“If the by-law is allowed to remain in force it would defeat the purpose of the Bill of Rights in the national Constitution especially on equality and non-discrimination,” the lawyer submitted.
They argued that they had not been given an opportunity to be herd before the disciplinary action was taken. “They were expelled for exercising their right to freedom of speech,” Mr Murgor said.
They sought a declaration that the by-laws were discriminatory on lady golfers hence contravened the Constitution. They also sought declaration that the various disciplinary actions taken against them were unconstitutional hence null and void.
They asked the court to quash the actions, order their reinstatement. The Attorney General’s office concurred that the new by-laws were in violation of Article 27 of the Constitution. The State Law Office termed the making of the by-laws as chauvinistic saying it could not be entertained in a progressive society like Kenya.
The AG argued that the private members club was not exempted from provisions of the constitution.
The position was also supported by the Law Society of Kenya and the Federation of Women Lawyer (Fida-Kenya) who had joined the fray as interested parties.
The Club argued that private member clubs in other countries have discriminatory provisions in their by-laws. The club and its officials submitted through lawyer CN Kihara that the directors had power to make, alter and repeal the by-laws, as it deemed necessary.
Kihara argued that the discrimination was permitted in the game of golf and it was not fully outlawed in private clubs.
He urged the court not to interfere with the age-old practices in the game of golf and its committees.
KGU officials distanced themselves from the dispute saying individual clubs who were their members had internal laws and processes governing them.
KLGU opposed the petition terming it an abuse of the court process. Though lawyer Lempaa Soyianka, the union said it doers not interfere with the running of affiliate clubs and only acted on their recommendations.
Mr Lempaa argued that the union had acted within its constitution by expelling the petitioners since they had been suspended from the club.
“The club does not initiate disciplinary action against a member of any club hence the claim that we denied them the due process was misplaced,” the lawyer submitted.
The big question was whether the court could intervene in the affairs of a private members club. Could the court intervene in alleged violation of rights and freedoms of a member by the club?
The court first rejected an argument that the directors of KGU and KLGU had been wrongly enjoined in the suit. The judges held that they were properly enjoined in the case as bodies with the oversight role over the game of golf in Kenya. They were the parties against who the petitioners had laid claims.
The judges analysed various authorities and held that they had legal power to deal with the case touching on violation of constitutional rights.
“We consider the fact that the 1st respondent (the club) is a private members club to be of limited relevance to the issue at hand. The respondents cannot be allowed to wave a private entity card to bar this court, from assuming jurisdiction where there are allegations of breach of fundamental rights and freedoms by its members or any other person,” said the judges.
They added: “It can not be safe, in a progressive democratic society, to arrive at a finding that allows private entities to hide behind the cloak of ‘privacy’ to escape constitutional accountability.”
The judges noted that mediation even by KGU and the Commissioner of Sports had failed hence ruled that it would have been unrealistic to expect that there were other available modes of settling the dispute.
They held that private clubs were discriminatory in terms of whom they could or could not admit as members hence courts could not micromanage them. However, they were still bound by the Constitution of Kenya in making their rules.
They said the by-law was amended long after the petitioners had become members of the club.
The club’s constitution did not provide for such discrimination hence the move by the directors to introduce such discriminative law was contrary to the clubs own constitution.
The court declared that the resolution made by the board excluding the participation of the female members in the general meeting was unconstitutional hence null and void and it was quashed.
The club was directed to reinstate Mambo and Ngugi to full membership with all its benefits and privileges.
KLGU was directed to ensure the orders were implemented in so far as they affected the handicaps of the two petitioners.
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