Does the Sports Disputes Tribunal (SDT) have powers to request world football governing body, Fifa, to impose a Normalization Committee on Kenya? Can Fifa oblige or decline the request? And what is a Normalisation Committee, anyway?
These are questions that have dominated the Kenyan football scene since Tuesday when the local Sports Court stopped Football Kenya Federation (FKF) elections and invited Fifa to consider forming a normalisation committee in terms of Articles 8 and 14 of the Fifa Statutes.
In paragraph 178, the ruling said a normalization committee of the FKF is the route that best commends itself to the Tribunal. Its mandate, it said, would include to run the daily affairs of FKF, to review the FKF Constitution 2017 and to organise and conduct the elections for FKF.
“It is hoped that this proposition will commend itself to Fifa and that it will take immediate steps to appoint a normalization committee and advise FKF and the Tribunal of the identity of the persons recommended for such appointment,” the ruling reads.
The pronouncement prompted a robust rebuttal from outgoing FKF president Nick Mwendwa who said, “they (SDT) cannot tell Fifa what to do. They said they would write to Fifa and we (FKF) will also wait for directions from Fifa.”
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It is this view that Fifa will definitely weigh against the Tribunal’s reasoning that “it was the second time it will have been constrained to impeach the mechanisms put in place by FKF for the holding of elections.”
And if it were to offer a second chance, SDT said, “it would necessitate extending the term of FKF’s National Executive Committee further beyond the limit of four (4) years.”
These Tribunal’s considered view, for all intents and purposes, appears to corner FKF when it adds:
“As the present NEC has failed to facilitate this (transparent process), the Tribunal does not see how allowing it to continue to be in charge of the roadmap to these elections could possibly instill confidence in stakeholders and potential aspirants.”
The pronouncement left an eerily echo of Fifa’s previous warning when its Governance Services Manager Sarah Solemale visited Kenya in December 12 last year.
Solemale told Goal.com at the time that, “Fifa is closely monitoring the situation to ensure the compliance of the SDT decision is done and also within a reasonable amount of time. It is important for FKF to know that at the end of the presidential and the National Executive Committee term which is to end on February 10, 2020, elections must be held.”
Solemale said at the time Fifa would be flexible and give an additional month, the basis of which the cancelled elections were to be held on March 27.
Essentially, Solemale’s stance means Fifa recognises the Sports Court. In turn, Kenya by dint of Chapter One, Section 2 para 6 of Constitution 2010, which says, “Any treaty or convention ratified by Kenya shall form part of the law of Kenya under this Constitution binds the country to the Fifa.
But will Fifa accept the SDT’s request to form an FKF Normalisation Committee?
According to researcher Hannah Kent, in an article published in www.lawinsport.com, this happens in very ‘exceptional circumstances’ and is always a last resort mechanism.
She opines: “Member Associations are required to comply with the principles of good governance, including but not limited to political and religious neutrality, prohibition of discrimination, and judicial independence.”
She adds: “Fifa has the power to intervene deriving from its Statutes especially Article 8, which provides that Executive bodies of member associations may under exceptional circumstances be removed from office by the Council in consultation with the relevant confederation and replaced by a normalization committee for a specific period of time.”
Crucially, the article says, “Every person and organisation involved in the game of football is obliged to observe the Statutes and regulations of Fifa as well as the principles of fair play.”
Fifa, holds closer to its heart the principles of fair play and if it agrees with SDT’s reasoning in paragraph 173, then FKF’s fate could be sealed.
The SDT said: “After careful consideration (it) has found in favour of FKF to a significant extent with respect to its grievance with the Registrar’s interpretation of the Act and the Regulations.
“However, the Tribunal has held against FKF on a point that is of the greatest significance to the validity and legitimacy of the mechanisms put in place for the elections.
“This has to do with the candidate eligibility criteria and the fact that these significantly erode the right of stakeholders to vote into office persons of their choice who best articulate the aspirations and visions of the football family.”
The Kenyan Sports court faulted section 4 of FKF’s Electoral Code as not included in its Constitution yet only came into force shortly before the election when it requires candidates to have been active in football for three of the last four years.
“This is clearly an illegitimate barrier to candidature and fully explains why, as Mr. Ouma articulated, the positions of President and vice president have only one candidate making the election effectively a coronation,” the ruling reads.
It adds: “There are apparently numerous other positions in which there is no contest to the candidature of the incumbent.”