Nick Mwendwa and team remain in charge, SDT ruling has no legal effect – FIFA

By Robert Abong'o: Thursday, March 26th 2020 at 00:00 GMT +3 | Football
Football Kenya Federation (FKF) president Nick Mwendwa addresses the media after the Special General Meeting held at a Nairobi hotel on January 28, 2020 [Photo/Stafford Ondego]]

FIFA has spoken.

Football Kenya Federation (FKF )President Nick Mwendwa and the current National Executive Committee (NEC) members will remain in office.

World Football governing body FIFA on Wednesday, March 25 quashed a ruling made by Kenya’s Sports Disputes Tribunal (SDT) that saw the cancellation of FKF’s repeat elections. FIFA has also turned down the Tribunal’s proposal to declare the current NEC’s tenure in office over.

In a letter seen sent to FKF Chief Executive Officer (CEO) Barry Otieno dated Wednesday, March 25, FIFA spoke widely on several issues surrounding the aforementioned above.

First, FIFA blamed FKF for subjecting itself to the SDT when it should not have, arguing the SDT is not recognised as the ultimate settlement medium at national level.

“FKF statutes do not expressly recognize the jurisdiction of the SDT as being the ultimate arbitration forum at national level. Moreover, we note that the SDT in not a national arbitration tribunal in the sense of FIFA circular 1010dated 20 December 2005. Despite the aforementioned, the FKF surprisingly subjected to the SDT by its own initiative while it was not obliged to so do as per its Statues,” part of the statement highlighted.

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FIFA goes on to explain how the SDT’s ruling has no effect according to its Statutes.

“This, however, does not entail that the SDT decisions are binding on FIFA when it comes to its prerogatives and remit for which the Court for Arbitration for Sport (CAS) in Lausanne, Switzerland has exclusive competence (cf. art. 57 and 58 of FIFA Statutes, 2019 edition). Therefore, we wish to emphasize that the relevant SDT ruling has no legal effect on FIFA,” they explained.

FIFA also noted that FKF’s Electoral Boards, its Statues and Electoral Code were agreed upon and approved in January, and no rightful party opposed the elections, with the SDT’s knowledge.  

“We must subsequently recall that the FKF Statutes and Electoral Code, as well as its Electoral Board, were approved and elected respectively by the FKF GA on 25 January 2020, and no FKF member having the right to oppose it did so. Consequently, the Electoral Code was duly adopted by a validly convened GA, as underlined by the SDT decision itself,” outlined FIFA.

The association pointed out the FKF electoral process had been marred by demands from Football Stakeholders in the country, with rising concerns from the government. They revealed this was the reason they scheduled a meeting in Switzerland with the Cabinet Secretary for Sports, Heritage and Culture Amb. Amina Mohamed. The agenda was to discuss this burning issue, however, the CS cancelled the meeting after holding another with FKF and other parties in her office to try sort the situation.

“It is common knowledge that the successive SDT decisions on the FKF electoral process have generated demands from some Kenyan football stakeholders and concerns from the Kenyan government. This is the reason why the Minister for Sport, Mrs Amina Mohamed, had agreed to a meeting at the Home of FIFA in Zurich, Switzerland on 30-31 January to discuss this thorny situation. This meeting was eventually cancelled at her own request, following a meeting at her office held with the FKF and other relevant state bodies to resolve this strained situation which sadly affects Kenyan football,” FIFA noted.  

Football Kenya president Nick Mwendwa (in blue) and officials follow proceedings in a 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/Stafford Ondego, Standard]

There is hope...

FIFA hopes to have a meeting with the Sports CS, FKF and the SDT and relevant stakeholders soon to find a way forward.

Due to the spread of the coronavirus (COVID-19), they will communicate should it not have been dealt with by Monday, April 6, 2020.

“Pending this meeting, and for the avoidance of doubt, the current FKF Executive Committee members, including its President, shall remain in office,” FIFA concluded.  

Here are screenshots of the letter below:

FIFA's letter to FKF [COURTESY]
FIFA's letter to FKF [COURTESY]

The Sports Disputes Tribunal on March 17, negated FKF repeat polls and proposed the appointment of a Normalisation Committee to head football matters in the country before proper elections were done.

“The Tribunal agrees that the eligibility criteria is a limitation of the challengers’ political rights as enshrined under Article 38 of the Constitution. No justification has been offered by FKF for the limitations introduced in the Code; and even if such limitation was justified, it would have had to be incorporated into the FKF Constitution 2017 and notified to the members and potential candidates within such period as would allow them to bring themselves within the eligibility criteria. Term of office of the NEC is at an end and a request that FIFA appoints a normalisation committee for the purpose of inter alia, holding the elections of the FKF,” explained the Tribunal chairperson John Ohaga, as he voided the elections.

Where it all started…

The Registrar started a storm when it wrote to FKF in November last year informing them that they had not complied with the applicable laws it is registered under when it called for elections.

The Sports Registry headed by Rose Wasike said: “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 immediately filed a petition seeking the Tribunal to find the Sports Registrar to have acted improperly. Consequently, SDT chairman John Ohaga directed that all interested parties be served.

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