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Tribunal chair Ohaga’s tough task of plotting the arc of justice

Last updated 8 months ago | By Robin Toskin

Football Kenya Federation (FKF) president Nick Mwendwa (in blue) follows proceedings of a court case where the Sports Dispute Tribunal (SDT) 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]

And so, all eyes are turned, fixed on the Milimani Law Courts for the proverbial white smoke. Tomorrow, the Sports Disputes Tribunal chaired by John Ohago, is expected to rule on Football Kenya Federation’s petition to compel the Sports Registrar to accept the returns of their controversial elections.

Why does it matter, at all?

This is a fight to control football, the game which Liverpool legend Bill Shankly famously retorted: “Some people believe football is a matter of life and death, I am very disappointed with that attitude. I can assure you it is much, much more important than that.”

So much is at stake. SDT chair Ohaga’s plate is full. The respected arbitrator and his panel gave themselves three weeks to sift through volumes of written submissions after spirited oral presentations on February 19.

What began as a simple prayer by FKF to have Sports Registrar, Rose Wasike, ordered to accept the returns of their hotly contested elections and to declare her “directives and pronouncements” calling off their exercise as “mala fides, unreasonable and unlawful” ended up opening Pandora’s Box.

In taking the case to SDT, FKF appeared not to have anticipated Chinua Achebe’s warning in Arrow of God that, “a man who brings home ant-infested firewood should not complain if he is visited by lizards.”

And lizards they came. Over 50 of them came bearing football club names represented by CBG Ouma, journalist Milton Nyakundi, Nelson Odongo of Kerandi Manduku & Co. Advocates all with their barrels trained on FKF represented by Victor Omwebu of Litoro & Omwebu Advocates.

The key plank of the FKF petition is their being duly registered under section 47 (1) of the Sports Act 2013 and were right to proceed with the elections in accordance with their own constitution as provided by the second schedule of the statute.

Yet, the Registrar is an impediment that must be dispensed with through the SDT, which should find her directives premised on Rule 20 of her Regulations unreasonable and unlawful.

FKF also submitted that the Registrar’s directive requiring mandatory registration of County Associations is against the law and Rose Wasike has no choice, but to accept the returns of their elections.

In fact, according to them, the Registrar has no role to play in their elections and her directives have no locus for its Constitution is sufficient to conduct their elections in peace.

And so, FKF urged the SDT to urgently make a ruling in time to allow the Electoral Board to proceed with their mandate, which they argued they were unable to execute as long as the petition (No. 3 of 2020) was not heard and determined.

However, the events of this weekend — the County elections which were held on Saturday — contradict the very position that they needed clarity and direction from the SDT on the “eligibility of some of its members to vote owing to pronouncements and/or directives” of the Registrar.

In her response before the SDT, Sports Registrar, Rose Wasike, maintained that FKF had failed to comply with the requirements of the Sports Act 2013 (Article 46), Rules 4 (2) and (3) as well as Rule 20 of the Sports Registrar’s Regulations of September 2, 2016.

The Registrar contends that the elections cannot continue without FKF registering at least eight county sports associations as the minimum conditions for having the elections.

She also has issues with the proposed FKF Constitution of 2017, which she cites for being unaligned to the Constitution of Kenya 2010 and, which cannot be used for the elections.

Accordingly, she will decline to receive any returns from an election that is held without the conditions she has listed.

Lawyer CBG Ouma, appearing for more than 60 clubs — enjoined as interested parties — contended that the Special General Meeting that appointed and approved the Electoral Board was illegally constituted and had at least 40 delegates, who lacked the mandate to make decisions on behalf of branches because their term in office had expired two days prior to the January 28 assembly.

“The 2020 FKF Electoral Code and 2020 FKF Elections Board are the product of an unlawfully convened and unlawfully constituted SGM,” argued Ouma, who also further contended that the Electoral Code had denied clubs the right to participate in a process that determines the leadership in their own counties.

He said they had been denied the chance to “even nominate candidates”, arguing that the code had also been designed to lock out potential aspirants.

“The exclusion of the clubs members participating in sub-branch-organised or sub-branch-authorised competitions is a gross violation of the universally acknowledged principle of sporting merit as it effectively relegates the clubs to a fundamentally inferior and non-existent league.”

Further submissions by Ouma included arguments that the FKF had defied orders previously issued by the SDT, absence of a valid appeals board and the county elections being illegal for non-compliance with mandatory provisions of the Sports Act 2013.

In his submissions, Nyakundi, a journalist who shocked the media fraternity when he applied to be enjoined and appeared in person before the tribunal, condensed his case into nine issues with emphasis on four major ones.

Nyakundi submitted: “The term of office for Nick Mwendwa and co having expired and that Cabinet Secretary Amb. Amina Mohamed has locus to invoke the Sports Act to appoint a caretaker committee and that the FKF petition and prayers amounted to an invitation for the SDT to give declarations against the law.”

Relying heavily on provisions of the FKF Constitution, the Sports Act and a decision of Justice John Mwera (in Civil Suit No. 58 of 2004), Nyakundi argued that Mwendwa’s term had expired and he had no mandate to organise for elections. All he has to do, he argued, is to pack and leave.

“They cannot for any reason remain in office and arrange for elections, a thing they seem not to have thought of doing before their time ran out,” Nyakundi quoted Justice Mwera’s ruling.

Nelson Odongo, from Kerandi Manduku Advocates, who were appearing for another group of interested parties, contended that FKF contravention of the Fifa Standard Electoral Code on the premise of a letter from Fifa suggesting there was no obligation to follow the code had no legal basis.

According to Odongo, an officer of the Fifa secretariat had no authority to override a provision of statute or regulation of Fifa. FKF had argued that a letter by Veron Motsengo-Omba saying the Fifa code was merely a guide had not been provided for in the statutes and as such could not be relied upon.

He contended that, by the purported appointment of the board a month before the elections, the FKF had failed to adhere to the requirement that the electoral Board be appointed at least six months before the elections can be held.

That provision is found in Article 4 (3), whose violation attracts Fifa sanctions, which Omondi says the FKF has exposed the country to under paragraph (1) of part (G) of the code.

“Failure by the Association to apply the principles of this code shall be considered a serious violation of Article 13 of the Fifa Statutes and shall lead to consequences described in Article 14 of the Fifa statutes or the disciplinary measures provided for under Article 55 of the Fifa Statutes,” states the code.

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