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FKF crisis: Did Elections Board act outside its powers?

Last updated 13 days ago | By Robin Toskin

From Left- FKF Electoral Board members Alfred Ndinya, Ali Hassan member, Chairman Kentice Tikolo, Barry Otieno CEO FKF and Patrick Onyango Board Secretary during the unveiling of the reconstituted Electoral Board ahead of the upcoming elections set to be held before March 30 in Nairobi on Monday, Feb 3, 2020. [Jonah Onyango, Standard]

Candidates in the various elective positions in the controversial FKF county and national polls will be following keenly the proceedings at the Sports Disputes Tribunal today.

The process that has twice been nullified by Tribunal is facing a stern scrutiny after some aspirants and two clubs – Bondeni and Cheptiret went to the Sports Court praying to have the exercise stopped.

Through Nelson Odongo of Kerandi Manduku Advocates, the petitioners argue that the FKF Elections Board did not only act outside of its powers but also relied on Article 4 on the eligibility to conduct the exercise, which provisions the SDT found on March 17 to be in violation of the Constitution of Kenya.

The petitioners argue that the said ruling automatically required stakeholder engagement, given the absence of a substantive FKF NEC, so as to rectify the offending Elections Code.

“It was legitimately expected that there would have been stakeholder involvement in the formulation of the guidelines and regulations…” the petitioners argue in their court documents.

The Petitioners have relied on the finding of the Supreme Court in Petition NO. 1 OF 2017 - Raila Odinga & Another – vs – IEBC & 2 others, where the judges ruled that “elections are not events but processes”.

“In so doing, the apex court held that the legitimacy and fairness of an election is not entirely based on the happenings on the Election Day but the events and activities leading to an election determine the legitimacy of the said election.

“We humbly wish to submit that taking into consideration the issues that we have submitted on and the issues outlined in this instant petition combined with the leaked WhatsApp audio of Nick Mwendwa addressing his “team blue “members, it is quite evident that the electoral board has been compromised and that it is being used as a tool to ensure that the incumbent president and his team remain in office.

“It for this reason that the Petitioners herein alongside other football stakeholders have lost faith in the ability of the 1st Respondent (Elections Board) under the guidance of the 2nd Respondent (Kentice Tikolo) to conduct free and fair elections.”

In response as their defense, the board - through an affidavit sworn by its chair Kentice Tikolo, has maintained that the process is legal by virtue of the Fifa letter dated August 5, 2020 which was sent to FKF CEO Barry Otieno and signed by Veron Mosengo-Omba – the Chief Associations Officer of the Zurich-based global football governing body.

“That I am aware that in SDT 3 (FKF) & 5of 2020, this tribunal requested Fifa to consider the possibility of setting up a normalization committee pending the resolution of the FKF elections and having considered all factors, Fifa advised the FKF on 5th of August to conduct fresh elections as soon as the public health situation in the country permits but with a strict injunction that such elections must be conducted wholly,” she avers in her affidavit, dated September 10.

“I reiterate that the electoral board is an independent board that is conscious of its mandate in law and which is committed to discharge to the applicable standard and deliver an electoral process that is reflective of the will of the football fraternity.

“The Petition herein is a speculative attempt to stop the elections using generalized allegations, baseless innuendos, idle stereotypes and wild claims based on interpretations of law that are an aberration from settled from principles of electoral justice and law.”

The contested elections, according to the FKF Elections Board calendar are scheduled to kick off at the County level on Saturday, September 19 and national elections on October 17.

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