FIFA rejects, trashes SDT ruling on FKF, calls for meeting with Sports CS, FKF and Sports Tribunal

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 rejected the Sports Disputes Tribunal’s request for them to form a Normalisation Committee to oversee Football Kenya Federations’ operations after the Tribunal called to an end the FAs term of office on March 17.

The decision has not gone down well with a section of stakeholders, leading to calls for FIFA’s Chief Members Association Officer, Veron Mosengo-Omba to explain his role in FKF’s undelivered OB van whose purchase from WTS Media Group Ltd, he approved, before the Leeds-based company collapsed with Sh125 million deposit (see separate story).

In reaching the decision Mosengo-Omba, wrote to FKF yesterday, noting: “We would like to highlight that the FKF statutes do not expressly recognise the jurisdiction of the SDT as being the ultimate arbitration forum at national level.

It added: “Moreover, we note that the SDT is not a national arbitration tribunal in the sense of FIFA circular 1010 dated 20 December 2005… Therefore, we wish to emphasize that the relevant SDT ruling has no legal effect on FIFA.”

In the letter, FIFA also ignored the SDT’s ruling that “the term of office of the NEC is at an end.”

Instead, the FIFA chief, who has called for a meeting with Sports CS, SDT, FKF and other relevant stakeholders, wrote: “Pending this meeting and for the avoidance of any doubt, the current FKF Executive Committee members, including its President, shall remain in office.”

The FIFA letter, however, did not order FKF to proceed with the election exercise that the Tribunal halted on March 17.

Contacted for comment, SDT chair John Ohaga said he will reserve the Tribunal’s comments until April 21 as ordered.

FKF had petitioned the SDT on February 25 seeking a determination on the electoral process they had embarked on, a move that attracted over 60 interested parties, who argued that the process was flawed.

And in a ruling rendered on March 17, the SDT agreed: “The eligibility criteria at Section 4 of the 2020 Electoral Code are unreasonable and designed to lock out potential aspirants and is therefore 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.”

In so doing, the SDT ordered that “the intended elections and the process towards these elections unlawful for non-compliance with Article 38 and 81 of the Constitution of Kenya.”

Reacting to FIFA’s letter, the interested parties’ lead lawyer CBG Ouma said: “Kenya is in abnormal situation of having a federation without a leadership. FIFA has a moral and legal obligation to normalise the situation.”

Saying “for the sake of peace” FIFA has also called for a meeting with the FKF, the SDT representative(s), the Minister of Sport and any other relevant stakeholders in order to find a way forward.

Stakeholders’ rebutal to FIFA letter

(Interested parties to FKF’s petition)

1. FIFA is in grave error in its interpretation of the ruling and by suggesting that the Sports Disputes Tribunal is not the ultimate National Arbitration Tribunal on matters Sport in Kenya and fails to meet the standard set by the FIFA circular 1010 dated 20th December 2005. The author has failed to demonstrate or point out which areas of (international) arbitration standards the establishment of the SDT has offended or fallen short of.

2. FIFA has erred in law and in fact by asserting that the FKF Statutes do not recognise the Sports Disputes Tribunal as a National Tribunal yet the FKF is conditionally registered under the Sports Act 2013, the same law that establishes the SDT as the sole National Arbitration Tribunal, whose jurisdiction (original and appellate) all sports entities in Kenya must submit to. Kenya does not have any other National Sports Disputes Tribunal and the SDT operates within the international standards including the applicable international conventions that guide the operations of Arbitration Tribunals

3. FIFA is in contradiction of its own position on the jurisdiction of the SDT, whose decision it has in the past agreed with and even directed the FKF to comply with so it is preposterous that they can purport to rubbish the legal effect of the SDT decision on FIFA

4. It is suggesting that FIFA (being a registered legal entity in Switzerland) and Caf (being a registered entity in Egypt) can operate outside the confines of the Laws of the country they are hosted in, which is not the case. It follows then that FKF cannot be allowed to operate in defiance of Kenyan laws and even their own Constitution. In any case, the FIFA Statutes and their application within the context of the Kenyan Law is premised on Article 2 of the Constitution of Kenya 2010, which provides that any contravention (of any manner, including by interpretation) is null and void to the extent of the contravention. We maintain that this interpretation of FIFA Statutes and their authority contradicts the Kenyan Constitution and as such is not tenable and the Kenya’s Supreme Law prevails

5. Being an international organisation of repute, FIFA is encouraging its affiliate in the Republic of Kenya to contravene Kenyan laws, which is an unacceptable position. Kenyan Laws are very clear on the term of office question and there is no legal premise upon which Mr Mosengo-Omba can purport to extend the term of office of Mr.Nick Mwendwa and his colleagues. The SDT decision on the term of office is final and irreversible

6. FIFA is being selective on which parts of the decision to comply with because it is the same former officials of FKF that moved the SDT, which decided in favour of the FKF on a number of issues they had raised. It is a shame that they want to choose which aspects of the decision to agree with and celebrate but cite jurisdiction on matters that have gone against them. What if the decision had been entirely in their favour?

7. Inviting a meeting “of [...] the SDT representative(s), the Minister of Sport and any other relevant stakeholders in order to find a way forward” is evidence that they are cornered and are trying to seek a mischievous way out of the corner they find themselves in. Knowing FIFA, they would have been categorical that the FA is properly constituted and there would not be any need for a meeting with anyone.