OPINION: Why Nick Mwendwa is wrong on registration of County sports associations
FOOTBALL By Twaha Mbarak | August 5th 2020
In recent weeks, the outgoing president of the Football Kenya Federation Mr. Nick Mwendwa has gone on record, through the media and correspondence with various institutions of government and with world's football governing body - FIFA, made statements that fly in the face of the law.
The pronouncements are meant to blatantly mislead football stakeholders and the general public on the actual situation of football in Kenya.
From the outset, Mr. Nick Mwendwa has erroneously accused persons whose names or identities he has never disclosed of always moving to court to litigate on matters that should not be in court in the first place.
Yet he is the same person, who has moved the courts on the very matters that have turned out against him and his co-conspirators at the federation.
On the June 16, 2020, former FKF South Coast chairman Gabriel Mghendi and his Secretary, Lilian Nandudu, both of whom are staunch supporters of Mr. Mwendwa, sued the Chief Justice of Kenya, the Chief Registrar of the Judiciary and the Attorney General. Mr. Mwendwa’s foot soldiers sought orders by Mombasa High Court to bar the Sports Disputes Tribunal (SDT) from proceeding with matters touching on the Football Kenya Federation (FKF).
Around the same time in the High Court of Kenya at Kericho, Mwendwa’s supporters Alfred Kirui, Kefa Ondati Nyamanya and Bernard Odhiambo Wanguche filed Petition 1 of 2020 suing the Attorney General, the Cabinet Secretary in Charge of Sports Amb Amina Mohamed, the chairperson of the Sports Disputes Tribunal John Ohaga and the Chief Justice of Kenya, David Maraga. The idea is to take down the Sports Tribunal over its Rules of Procedure.
As if that was not enough, the chairman of Murang’a SEAL FC Robert Macharia, also a close associate of Mr. Mwendwa, applied at the High Court of Kenya at Murang’a for Judicial Review of the Sports Disputes Tribunal ruling of March 17, 2020, which nullified FKF’s intended elections at County level March 14 and national polls on March 27.
The same Mr. Mwendwa has now written to the Sports Registrar purportedly to demand that Ms Rose Wasike desists from registering County Football Associations.
Mr. Mwendwa must be reminded that the Sports Registrar is exercising the functions of her office by dint of Article 46 of the Sports Act 2013 that gives her the authority to register sports entities in the country. The Sports Registrar does not take instructions from the person of Mr. Mwendwa and she is inherently right to continue performing the functions of her office without undue interference.
It has also to be noted that Article 11 section 1 of the FKF Constitution 2017 defines the FKF Members as a) The FKF Premier League Clubs; b) The FKF National Super League Clubs; c) The FKF National Division One League Clubs; d) The FKF Division Two League Clubs; e) The 48 Counties of FKF.
It is, therefore, misleading for Mwendwa to refer to the Counties as branches because branches don’t appear anywhere in the FKF constitution, which also provides for how the FKF will admit new members.
It is instructive to note that the ruling of the Sports Disputes Tribunal of March 17, 2020 that county sports associations are not synonymous with branches and that national sports organisations can create their own administrative units, the same ruling did not legislate in a manner as to amend Article 46 of the Sports Act 2013 that empowers the Sports Registrar to register sports entities.
The FKF, going by the ruling of the SDT, must however legitimize the legal status of those administrative units. It's, therefore, preposterous for Mr. Mwendwa to bastardize efforts to register County Football Associations which, in the worst case scenario, would be required to go through the established structures for recognition as affiliates of the FKF.
Mr. Mwendwa should be focused on adherence to the law as the bare minimum for FKF elections to earn the legitimacy of Statute and all other written law.
County Football Associations are the basic devolved units that, in accordance with the Constitution of Kenya 2010 and the FKF Constitution 2017, form the base administrative structures for football activities in congruence with the Kenyan national administrative structures, which the FKF adopted in their own constitution.
It is, therefore, hypocritical for Mwendwa to call FKF officials who have done their best to comply with the Sports Act 2013 as non-members, a position he holds because of his misguided belief that genuine FKF members must be his sycophants.
He needs to wake up to the reality that sports is a devolved function and he can never therefore dictate to FKF members on the running of football activities in their counties and that everybody including him are not above the law.
Mr. Mwendwa is now behaving like a bull in a china shop. Despite his being in office on transitional basis as per Article 43(2) of the FKF Constitition, he has made a mockery of legal standpoints set out in the decisions of the competent Sports Disputes Tribunal in SDT No 3 & 5 of 2020.
On numerous occasions, Mr. Mwendwa has acknowledged the absence of FKF National Executive Committee (NEC), which makes and ratifies keys decisions of the football body.
Yet in brazen show of bravado, he has purported to make far-reaching decisions that can ONLY be made by a validly elected and constituted National Executive Committee.
Thinking he is only playing politics, Mr. Mwendwa whose legal four-year term ended on February 10, 2020 having been elected on February 10, 2016, has besmirched the authority of the Sports Tribunal - a creature of the National Assembly of Kenya.
One wonders why the Chief Justice of Kenya is looking the other way instead of asking Mr. Mwendwa to account for all his utterances that brings the Sports Tribunal into disrepute.
Mwendwa is on record as calling the SDT Chair Senior Counsel John Ohaga as his "opponent" in the stalled FKF elections. This, notwithstanding the fact Mr. Mwendwa instigated a compromised General Assembly to break Fifa Statutes in October 5, 2019 by setting up an Elections Board that ran counter to Article 4(3) of Fifa Standard Code.
Time has come for Mr. Mwendwa’s antics to be called out for being against the law and his mischief stopped for the good of Kenyan football.
He has no nexus to attack the Sports Registrar for her fidelity to the law that establishes the office and neither does he have the locus - legal or moral - to question the legitimacy of Mombasa and all the other county Football Associations that have been registered in accordance with Article 46 of the Sports Act 2013.
Mr. Mwendwa’s focus should now be how to deal with the myriad of violations of the law including failure to hold credible elections before his term expired on February 10, 2020, a situation that has left a leadership vacuum at the federation and Kenyan football activities in limbo.
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