Did FKF mislead Fifa on Tribunal ruling?

Football Kenya Football (FKF) President Nick Mwendwa (L) and acting CEO Barry Otieno shake hands after a press briefing over John Avire’s purported transfer at the Goal project offices in Nairobi on July 22, 2019. Photo/ file

FKF elections:  FKF letter reveals contradictory statements and violations of Fifa Statutes

Under fire Kenyan FA begged world governing body for protection after its petition at Sports Tribunal went wrong.

Football Kenya Federation asked the world governing body, Fifa, to protect it from the Sports Disputes Tribunal ruling which it called “third party interference” Standard Sports can reveal.

The request prompted Fifa’s response in a letter dated March 25 that astonished the Tribunal head John Ohaga as inconsistent with their verbal communication on the verdict. Fifa’s letter has been roundly criticised as inconsistent with its protocol.

In a cover letter to SDT’s ruling dated March 18, FKF said it “wishes to request Fifa for protection” adding that it “also views the action and pronouncement of the Tribunal as third-party interference.”

Fifa, via a letter by Chief Member Associations Officer Veron Mosengo-Omba shot back: “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.”

This is even after FKF having previously won cases at the STD and an apparently incriminating letter written by FKF CEO Barry Otieno, which informed Fifa of several meetings with Sports Ministry, the Sports Registrar and SDT chair contrary to Article 14 (1)(i) of the Fifa Statutes that says: “Member associations’ have the obligation to manage their affairs independently and ensure that their own affairs are not influenced by any third parties in accordance with art. 19 of these Statutes.”

Such violations, according to Article 14 (3), “may also lead to sanctions, even if the third-party influence was not the fault of the member association concerned.”

It adds: “Each member association is responsible towards Fifa for any and all acts of the members of their bodies caused by the gross negligence or willful misconduct of such members.”

On March 17, the SDT stopped FKF’s intended elections that would have culminated in the election of its president and national executive on March 27,

In cancelling the intended elections, the SDT cited Article 4 of FKF’s electoral code that would have rendered the exercise a mere coronation.

In the letter, FKF told Fifa: “On March 14, 2020 the FKF Electoral Board held County elections in nine out of the 48 FKF Counties. Candidates in 37 Counties were unopposed while there were no elections in three counties, which failed to meet the electoral threshold as stipulated in the FKF Electoral Code.”

FKF justified to Fifa the use of the criteria saying, “Eligibility criteria is not unique to the cancelled FKF elections, as it has been applied in previous FKF elections, most recently in 2016 when this current administration was elected into office.”

However, the SDT ruling reasoned: “If such policy and eligibility criteria had been set out in the FKF Constitution, then there might have been a justifiable basis for asserting, firstly that this is a constitutional requirement, and secondly that potential candidates for office should be deemed to have known about the criteria by dint of the fact that it is in the FKF Constitution which has been approved and ratified by the General Assembly of the Federation.”

It added: “The difficulty therefore is that this criterion appears for the first time in the Code which itself is published ideally only six (6) months before the election to which it applies. “How then can a provision like this be legitimized when it appears in a Code which comes into force shortly before the election but requires candidates to have been active in football for three of the last four years.”

Surprisingly, Otieno’s letter seems to constantly suggest that FKF had been allowed to proceed with elections without compliance to the relevant Laws of Kenya and applicable Fifa Statutes and regulations, including the Fifa Standard Electoral Code.

The FKF letter notes: “During the meeting, which was also attended by SDT Chairman, Mr. John Ohaga and Ms. Wasike amongst other government officials, it was agreed that the Sports Registrar allows FKF carry out its elections and comply progressively with the 2013 Sports Act.”

Worried that such a position would undermined the rule of law, SDT chair Ohaga asked FKF to exercise their constitutional right to pursue legals avenues, but must publish their intention to petition the Tribunal in a local daily. FKF obliged and did so on February 13.

And while FKF put up a spirited case on February 25 and got most of their prayers, they were undone by the eligibility criteria, which the SDT said was not contained in its Constitution.