The Football Kenya Federation National Executive Committee met with the Federations branch chairmen and secretaries on the 16th day of February 2014. This meeting produced 18 resolutions that will be instrumental for the “development” of football in Kenya. Since the resolutions are in the public domain, today I will have the chance to review a number of them as a citizen and a fervent fan of football. For a start, the question I asked myself as I rushed through the resolutions was: ‘is there any statutory role for such a “consultative meeting?” To me the officials seemed to go beyond merely making resolutions and instead proceeded to make decisions, interpret rules, and laws, and reversing decisions including those which should be the function of institutionalized and statutory bodies/organs. However, not all resolutions have issues. In some, the Federation’s NEC stuck to its role and authority handed to it by its constitution and FIFA Statutes.
Specifically, here are a series of pointers on some resolutions:
That FKF Branches must put up strong financial systems to ensure transparency and accountability in all funding – Mr Joseph Andere (Chairman, Nyanza North) to steer the process.
This is an important resolution for a federation that has been constantly under fire for alleged mismanagement of funds. Football experts the world over concur that the mismanagement of funds is a serious problem in the governance of soccer. A system where transparency and accountability of all funds coming into the federation is taken will definitely bring back a degree of confidence to the federation from the public. Additionally, accountability may increase the number of sponsors willing to invest in Kenyan football. Consequently, the resolution on strong financial systems is in the best interest of Kenyan football.
Any vacant position arising within the FKF Branches must be filled through an elective process subject to the approval of the National Executive Committee (NEC). Any other competency outside the NEC should be tapped by appointment to the standing committees.
The FKF constitution establishing the Federations branches is the one that should determine how vacancies should be filled and whether NEC approval is required. Allowing the FKF constitution to determine how vacant positions are filled will help avert the manipulation of the federation and the list of officials. With the guidance of the Constitution, instances of cronyism will be a thing of the past. Consequently, only qualified persons will be appointed to fill vacant positions: a fact that will further professionalize FKF.
That Kenyan Premier League has no mandate to inspect, accept or reject any stadia suitability to host matches, they can only make recommendations to the Federation to approve or amend through its Technical committee. FKF will, in this regard, have the final word on the desire of Tusker FC to play in Meru’s Kinoru Stadium.
Stadium suitability is one of the Club Licensing Requirements and indeed ought to be the function of the National Federation. However, the Federation is empowered to delegate club licensing functions to the league body. It is apparent, in this case, that FKF did not delegate those functions to KPL; hence FKF should have the ultimate say on the suitability of stadia.
That FKF Branches will henceforth be entitled to 10% levy from all gate collections in matches played at their backyard, including KPL, National Super League and Division One matches.
Does this decision have any statutory backing? It doesn’t. Usually, revenue sharing for stadium gate takings is between the stadium owner and the football club. Resolution 10 above says FKF branches are entitled to 10% of gate takings (is it 10% of earnings of the club or of gross earnings for both the club and stadium owner?) perhaps that is what the tripartite agreement mentioned in Resolution 14 seeks to resolve? Does FKF have any such right over any such income accruing to a county government and football clubs? Mr Robert Asembo, the FKF Vice Chairman made a comparison of this decision to Fifa’s earning from gate collections during world cup matches. However, he was unable to give an example of a federation that does the same with revenue that is meant for football clubs. The federation erred and surprisingly contravened its own constitution, Article 17.2 states, “The affiliated clubs and groups of FKF shall make all decisions on any matters regarding their membership independently of any external body. This obligation applies regardless of their corporate structure”.
This being the ultimate statute that governs the operations of the Federation, why did the federation then contravene the provisions of Article 17.2 and decided for the clubs how to distribute the revenue they receive from gate collections?. Mr Asembo was unable to defend the decision of the federation with regards to levying 10% to the clubs with considerations to Article 17.2 of the constitution which provides for the independence of the clubs and groups in making decisions. Article 17.2 gives clubs the sovereign authority to make independent decisions.
This being the ultimate statute that governs the operations of the Federation, why did the federation then contravene it by deciding for the clubs how to distribute the revenue they receive from gate collections?
Immediate reinstatement of ex-FIFA referee Elias Kuloba and action taken against KPL for removing his name from the roll of referees for the 2014 season.
Such pronouncement should be taken by an institutionalized disciplinary or appellate body, after both parties have been heard. These kinds of decisions must not be made in a board resolution. Fair hearing and transparency are vital, as all football fans would want to know how they came to this decision. The KPL as the organizers of the league had valid reasons for removing Kuloba from its role of referees for this season. Apart from hearing the reasons of KPL, the appellate body will give Kuloba a chance to defend himself: this is what natural justice dictates. However, reinstating Kuloba will create winners and losers which won’t augur well for both parties.
That the common stand to be taken during the Annual General Meeting (AGM) is such that Sammy Sholei and Dan Shikanda be expelled for going to court, Hussein Terry be expelled for failure to protect the integrity of the federation as required by the constitution.
Article 15 of the FKF Constitution provides for Expulsion of members if they violate the laws of the local, regional, and international soccer governing bodies.
Does this insinuate that seeking legal redress a violation of the FKF,FIFA,CAF and CECAFA statutes, regulations, directives and decisions?. Isn’t this, just like resolution number 10 tyrannical? What if the mechanisms of seeking legal redress at the federation are flawed?
Yes I agree it is true that FIFA forbids court action generally, and that is why National Federations are required to set up National dispute Resolution Centres or submit to arbitration. The problem we have in Kenya is that we have not institutionalized dispute resolution mechanisms. The federation argues that the matter was heard and decided by the NEC, how about the law of Natural justice that all parties must be heard and guaranteed fair hearing?, Nemo iudex in causa sua (or nemo iudex in sua causa) is a Latin phrase which the lawyers at FKF are well familiar with that means, literally, no-one should be a judge in his own cause. It is a principle of natural justice that no person can judge a case in which they have an interest. The FKF NEC has unanimously decided to expel the officials in a matter they have interest in.
At least the government through the Sports Act is working on establishing the Sports Tribunal, which has been successful in other countries including New Zealand, Brazil, Australia, and Canada among others. For instance, the Brazilian football federation announced on the 8th of February 2014 that it has been warned by FIFA over the series of lawsuits filed in civil/ ordinary courts against a ruling of the sports tribunal.
Articles 61- 70 of the FIFA Statutes provides for the judicial bodies and disciplinary arm and procedures at FIFA. Mr Asembo argued that in football there are only two ways for dealing with offenders: “yellow card and red card”. This means warning and expulsion. The FIFA statutes such as Article 65 together with Article 10 of the FIFA Disciplinary code states that sanctions, reprimand, and fines can be used to punish an errant official. Wouldn’t it have been fair for the federation to administer any of the abovementioned sanctions on the officials? Why did they go for a very harsh sanction? This begs the question was this a vendetta or tyranny?
We must not disregard the laws of Kenya, especially the Constitution of Kenya, even FIFA itself acknowledges the need to respect the laws of the land and sports self- regulation must ensure that basic rights (including the right to seek legal redress) are protected, this has been provided for in Article 22 of the FIFA Regulations on the Status and transfer of players. The law of Sports is not enforceable in a vacuum. FKF has lawyers in its ranks as officials and they must be conversant with the provisions of Article20, and 22 of the constitution of Kenya which pertain to the Bill of Rights and fundamental freedoms for the citizens of Kenya, and Articles 47 and 48 which provide for access to justice for all persons.
The constitution of Kenya is the supreme law of the land. Why would someone be harshly sanctioned for pursuing his or her rights though legal redress? The lawyers at the federation will confirm that this is a right provided by the constitution of Kenya.
Seeking legal redress does not amount to violation of FKF, FIFA, CAF and CECAFA directives, statutes, laws, and rules. Rather, this is a statement constantly repeated to officials by those in power to scare them from pursuing their rights. This question goes to the Vice Chairman Mr Asembo who defended this assertion on television; is it an offence for an official of FKF to pursue his basic rights with reference to the constitution of Kenya? To me, stopping an official from pursuing his right is tyranny. FKF has not provided an avenue for dispute resolution amongst its members that guarantees fair hearing, upholds the law of natural justice and promotes the basic rights of its members. This leaves them with the ordinary court and the Constitution of Kenya as the only options to fight oppression.
The FKF Branch Chairmen and Secretaries fully support the President of FKF Mr. Sam Nyamweya for his visionary leadership and steering of the Federation and laud him for the great achievements made in the past two years in office.
This is the most hilarious “resolution” from the meeting that demonstrates grave sycophancy, obsequiousness, and cringing submissiveness from the officials towards the President that sums up the management of football in Kenya. I have nothing against the President of the Federation and his “achievements”, but any sane mind will tell you that this not a resolution. Oxford dictionary defines Resolution as “A firm decision to do or not to do something” the second definition from oxford dictionary “A formal expression of opinion or intention agreed on by a legislative body or other formal meeting, typically after taking a vote”, Is resolution number 18 a decision to do something or implement something?
I wind up with this inspiring quote by Samuel Adams, “If ye love wealth better than liberty, the tranquility of servitude better than the animating contest of freedom, go home from us in peace. We ask not your counsels or arms. Crouch down and lick the hands which feed you. May your chains set lightly upon you, and may posterity forget that ye were our countrymen.”
* Elvis Majani, is an Advocate of the High Court of Kenya and a Sports Lawyers from the Centre for Sports Law (CSL)