D-Day as Tribunal rules on FKF poll crisis

1.Whether the FKF Electoral Board had the authority or power to issue any regulations or regulations on FKF elections.

Petitioners say: By virtue of the ruling of this honourable tribunal in SDT 3 and 5 of 2020, the FKF electoral Board did not have the green light to resume their work as a normalization committee is yet to be formed, the tribunal in its ruling in SDT 3 and 5 of 2020 declared that the bodies established under the Electoral Code such as the Electoral Board and the Appeals Board remain validly in place and will await the appointment of a normalization committee before they can resume their work. The FKF’s electoral board first point of call before resuming their work would have been to seek leave and or directions from the Tribunal before resuming their work.

Secondly, the FKF electoral board is established under Article 61 of the FKF constitution which provides that: The Electoral Committee is the body in charge of organizing and supervising the election process in accordance with the Electoral Code of FKF.

Section 3 (IV).  Provides that the Electoral Board shall assess whether a candidate for any FKF elective position meets the eligibility criteria provided for in the present electoral code and the FKF constitution It is clear from the FKF Constitution and electoral code that the FKF electoral board’s mandate is administrative and supervisory in nature, they do not have authority to issue guidelines and regulations and their mandate is only to implement regulations already in place as an independent “referee”.

2. Whether the eligibility criterion of candidates for the upcoming FKF elections is constitutional, fair and open to the public.

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Petitioners say: Section 46(6) of the Sports Act which provides that all National sports organizations registered under the Act shall be open to the public in their leadership, activities and membership.

Article 37 of the FKF Constitution deals with the composition of the National Executive committee and provides that:

 a) The members of the National Executive Committee shall be no younger than 18 years of age and must be bonafide Kenyan citizen.

 b) They shall have already been active in football,

c) Must not have been previously found guilty of a criminal offence incompatible with the position and have residency within the territory of Kenya.

 d) No person shall qualify for an elective office in the Federation if the person: i. Is subject to a bankruptcy order or has in place a composition with their creditors; ii. If under suspension or expulsion by FIFA, CAF and FKF.

Based on the FKF article above, provisions of the FKF electoral Board’s guidelines and regulations on FKF elections, therefore, have no legal basis whatsoever in either the Fifa Statutes or the FKF Constitution.

 

3. Whether there was public participation and or stakeholder consultation before the formulation and implementation of the FKF regulations and guidelines by the FKF electoral board.

Petitioners say: The guidelines and regulations were formulated without the input of football stakeholders, taking into account that there is currently no National Executive Committee and that it is not possible to call a general meeting, it was legitimately expected that there would have been stakeholder involvement in the formulation of the guidelines and regulations, this has resulted into the formulation of guidelines and regulations which are restrictive, unreasonable and unconstitutional.

4. Whether the FKF electoral board can allow candidates who had submitted their Nomination Papers in the 3rd February 2020 elections not to resubmit their nomination papers or to pay the requisite nomination fees

Petitioners say: In SDT 3 and 5 of 2020 the Tribunal declared that the intended elections and the process towards these elections unlawful for noncompliance with Article 38 and 81 of the Constitution of Kenya, the election process includes the submission of nomination papers and payment of the requisite nomination fees and therefore by allowing some candidates not resubmit their nomination papers afresh is in effect perpetuating an illegality.

5. Whether the timelines for dispute resolution provided by the FKF guidelines and regulations on elections were reasonable in accordance with the principles of natural justice.

Petitioners say: The three main requirements of natural justice that must be met in every case are: adequate notice, fair hearing and no bias, the short period provided for hearing and determination of electoral disputes by the FKF electoral board and the Appeals board is extremely short to allow for fair and unbiased hearing and determination of disputes. A rushed dispute resolution process will most definitely lead to an unfair hearing.