Big kick off: FKF versus Sports Registrar

By Robin Toskin: Thursday, February 20th 2020 at 12:50 GMT +3 | Sports
John Ohaga, Chairman of the Sports Tribunal during his swearing-in by the Chief Justice of Kenya and President of Supreme Court David Maraga (not in the picture) at the Supreme Court of Kenya, Nairobi. The Sports Disputes Tribunal was formed under the Sports Act 2013 and its main role is to hear and give verdicts on appeals against decisions made by sports teams and other sports bodies in Kenya [Elvis Ogina, Standard]

All eyes on Sports Disputes Tribunal boss Ohaga as case seeking to hold football elections held outside Sports Act 2013 begins.

“The greatness of any nation lies in its fidelity to the constitution and adherence to the rule of law and above all respect to God.”

The now-famous quote by Chief Justice David Maraga that left many Kenyans awestruck when he annulled the 2017 Presidential Elections will come under sharp focus at the Sports Disputes Tribunal today from 2 pm.

Reason? Football Kenya Federation (FKF) has taken head-on Sports Registrar Rose Wasike, seeking the Tribunal to set aside her insistence that the football body holds their elections, due on March 30, in accordance with the dictates of Sports Act 2013.

FKF’s view, in their petition, is that such a declaration which saw the Sports Registrar call off its elections last year is “unreasonable and unlawful.”

Troubled FKF, therefore, wants the SDT to compel the Sports Registrar to allow them to conduct their elections first and, thereafter, progressively comply with the Act.

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The Sports Registrar, in a letter to FKF dated November 15, last year insists: “It is not proper for FKF to hold elections for County Sports Associations that have not registered in my office and also use non-existent County Sports Associations to vote in officials.”

FKF is already pressed by time having missed several deadlines and with its term expired on February 10 and world governing body Fifa watching from Zurich. They now have the burden of convincing SDT Chairman Ohaga, who once decreed in an appeal number 6and 9 of 2015 that: “FKF make arrangements to comply with Tribunal’a order to register under the Sports Act as required by law and such compliance must be undertaken on or before December 4, 2015.”

CLUBS ENJOINED

FKF’s prayers, however, are complicated by a section of its members who have applied to be enjoined in the case after the association adopted a resolution cutting off the Sub-branches from the election until after the national elections. The election exercise according to FKF will start at the Branch level.

But two clubs, Bondeni FC and Cheptiret United FC have sworn in their affidavits seen by Standard Sports, argue that their exclusion from the election exercise is unconstitutional.

“The exclusion of clubs participating in Sub-branch organised or Sub-branch authorised football competitions violates sections of the Sports Act 2013 as read with Article 81 of the Constitution of Kenya 2010 in that the same are neither free nor fair, nor based on universal suffrage,” the clubs said through their lawyers, Charles B.G Ouma & Co Advocates.

The clubs further submit that “The Respondent (FKF) has not complied with the orders of this tribunal in SDT Nos. 21 and 24 of 2020 on the mandatory requirement of public participation on the FKF Electoral Code.”

 Another member said: “FKF’s term limit expired on February 10, 2020. It will be interesting to know if Fifa gave an approval to extend FKF’s tenure beyond what is provided for the constitution or if the Sports Disputes Tribunal has the right to extend their term.”

The ruling of the case could have far-reaching consequences on the future conduct of the troubled football body and, the validity of its already late elections in the short term.

FKF prayers to FDT

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 mala fides, unreasonable and unlawful.

2. A declaration that a branch of a national sports organization is not synonymous with a county sports association and consequently, a national sports organization has no obligation in law to register county sports associations but to create and maintain branches as an organizational 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 organizational 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;

Clubs’ grievances

a. The notice convening the SGM of 28th January 2020 was not compliant with the 2012 (or indeed the proposed 2017) FKF Constitution.

b. Former branch officials whose tenure had expired on the 26th of January 2020 attended and participated in the SGM of 28th January 2020.

Part of clubs’ prayers to Tribunal

1.  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).

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

3. 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

4. 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.

5. A declaration that Section 2 of the 2020 FKF Electoral Code unfairly and unreasonably denies the petitioners/applicants and a significant proportion of the FKF membership the right to nominate candidates and vote at the 2020 FKF Elections as contemplated by Paragraph d of the second schedule to the Sports Act 2013 as read with Article 81 of the Constitution of Kenya 2010.

6. 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.

7. An order declaring the intended elections unlawful for non-compliance with the applicable law.

 

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