REPUBLIC OF KENYA
THE JUDICIARY
OFFICE OF THE SPORTS DISPUTES TRIBUNAL CASE NO. 3 OF 2020
FOOTBALL KENYA FEDERATION...................................................PETITIONER
VERSUS
THE SPORTS REGISTRAR &64 OTHERS…................. INTERESTED PARTIES
Consolidated with CASE NO. 5 OF 2020
CHEPTIRET UNITED FOOTBALL CLUB...............................1ST PETITIONER
BONDENI FOOTBALL CLUB...................................................2ND PETITIONER
VERSUS
FOOTBALL KENYA FEDERATION..............................................RESPONDENT
Hearing:
25th February, 2020
Panel:
Mr. John M. Ohaga, C.Arb Mrs. J. Njeri Onyango
Ms. Mary N. Kimani
- Chairman
- Member
- Member
Table of Contents
The Interested Parties and the Cross-Petitioners (SDTC No. 3 of 2020) and Cheptiret
United Football Club & Bondeni United Football Club’s (SDTC No. 5 of 2020) Case (jointly ‘the Challengers’)............................................................................................................................. 10
Structure of the Sports Act (‘the Act’) and Sports Registrar’s Regulations (‘the Regulations’) with respect to registration......................................................................................................... 13
The Electoral Code (‘the Code’) and the Electoral Board (‘the Board’)......................... 33
Public Participation......................................................................................................... 37
Appearances:
SDT Case No. 3 of 2020
Victor Omwebu instructed by Litoro & Omwebu Advocates for the Petitioner;
Mr. Munene, State Counsel instructed by the Office of the Attorney General for the Respondent.
Nelson Odongo instructed by Kerandi Manduku & Co. Advocates for the 1st to 8th Interested Parties;
Charles Ouma, Advocate instructed by CBG Ouma & Company for the 9th to 58th Interested Parties.
Mr. Amule for the 59th to 64th Interested Parties.
Mr. Milton Nyakundi in person as an Interested Party.
SDT Case No. 5 of 2020
Charles Ouma, Advocate instructed by CBG Ouma & Company for the Petitioners;
Victor Omwebu instructed by Litoro & Omwebu Advocates, for the Respondent
The Parties
1. The Petitioner is a National Sports Organization duly registered by the Respondent under Section 47(1) of the Sports Act, 2013 and a Football Federation recognized by FIFA, CAF and CECAFA and of P.O Box 12705- 00400 Nairobi, Kenya (hereinafter referred to as ‘FKF’).
2. The Respondent is a public officer in charge of the office of the Sports Registrar established under Section 45 of the Sports Act, 2013 to register and regulate Sports Organizations in Kenya (hereinafter referred to as ‘the Registrar’).
3. The Cross Petitioners, 8th and 9th Interested Parties are both domiciled in Uasin Gishu County and are members of FKF. Their address for purposes of service shall be in the care of CBG Ouma & Co, Advocates, 3rd Floor, Suite C2, Ojijo Plaza, Pjoio Road, P.O Box 85721-00200, Nairobi.
4. The Interested Parties comprise of various stakeholders in football, ranging from individuals who had been elected to administrative seats in the now nullified FKF elections, to journalists, to grassroot football clubs, subbranch members and sports journalists.
Procedural Background
5. By the Certificate of Urgency of Victor Omwebu, Advocate, Notice of Motion, Petition and Supporting Affidavit of Barry Otieno, all dated 3rd February 2020 (jointly ‘the Petition’) and presented to the Tribunal on 3rd February 2020, the FKF moved the Tribunal for various declarations.
6. Upon considering the Petition, the Tribunal issued directions requiring FKF to serve the Registrar and that the institution of the Petition be advertised and setting timelines for the filing of appropriate responses by such parties as would be interested in participating in the Petition. The purpose of this was to afford all those interested in the issues raised in the Petition to express their interest and to participate in what was clearly an matter of great public interest.
7. Before the Registrar could respond to the Petition, Cheptiret United Football Club and Bondeni Football Club (the Cross Petitioners) by a Notice of Appeal, and the Supporting Affidavit of David Simiyu Logoye, all dated 12th February 2020 (jointly ‘the Cross-Petition’) and presented to the Tribunal on 13th February 2020 instituted SDTS Case No. 5 of 2020 where they sought to challenge inter alia, the resolutions passed by the FKF Special General Meeting of 28th January 2020 adopting the FKF Electoral Code 2020 and constituting the FKF Elections Board 2020.
8. The Registrar vide the Replying Affidavit of Rose M.N Wasike dated 17th February 2020 and presented to the Tribunal on 18th February 2020 responded to FKF in SDTS Case No. 3 of 2020.
9. Milton Nyakundi, one of the interested parties filed a Notice of Motion dated 18th February 2020 supported by his Affidavit and presented to the Tribunal on 19th February 2020 seeking to join the Petition as an Interested Party by virtue of the advertisement placed in the Daily Nation inviting parties to put in their responses.
10. SDT Case No. 3 of 2020 was scheduled for hearing on 19th February 2020 but neither of the parties were ready to proceed. Accordingly, the Tribunal issued directions consolidating the two (2) matters and requiring the parties to prepare, file and serve their responses and skeleton arguments on or before Monday 24th February 2020. The matter was then scheduled for hearing on Tuesday, 25th February 2020 at 3:00 pm at the Milimani Law Courts.
11. The parties duly complied with the directions issued by the Tribunal and the two petitions were heard on 25th February 2020 from 2.30 pm. to 7.30 pm at the Milimani Law Courts, Criminal Court Number 9 when Counsel for all parties made extensive oral arguments to augment the written submissions already exchanged.
Factual Background
12. This decision contains a concise summary of the relevant facts and allegations based on the parties’ pleadings, affidavits, documentary evidence, oral and written submissions. Additional facts and allegations found in the Parties’ written submissions, correspondence and evidence may be set out, where relevant, in connection with the legal discussion that follows. While the Panel has carefully considered all the facts, allegations, legal arguments, correspondence and evidence submitted by the parties and treated as admissible in the present procedure, it refers in this Award only to the matters necessary to explain the reasoning and conclusions.
FKF’s case
13. FKF’s grievance arises from the stance taken by the Registrar in relation to FKF’s preparedness for the elections.
14. By a letter dated 25th October 2019, the Registrar wrote to FKF stating that according to the records, none of the County Sports Associations who were supposed to vote in the officials of FKF is registered with her office; it was therefore her directive that FKF advises or assists its County Associations to lodge with the Registrar applications for registration for her consideration so as to enable them to vote in the FKF elections once registered. Further that FKF should submit its amended constitution that is in line with the 2010 Kenya constitution, the Sports Act and any other relevant law; and that the failure to register the County Sports Associations and adhere to her advice before the elections are carried out would leave her with no option but to cancel the elections and thereafter cancel the Certificate of Registration of FKF.
15. By a letter dated 15th November 2019, the Sports Registrar once again wrote to FKF asking them to call off the elections scheduled for 23rd November 2019 on account of non-registration of county sports associations who were supposed to elect the officials of FKF. The Registrar also reiterated that the 2017 FKF constitution was not aligned to the Constitution of Kenya, 2010 and the Sports Act.
16. FKF were required to register at least 8 County Sports Associations with the Registrar before they could hold elections as registration was the only means by which the members would be eligible to vote. They were also directed to align the 2017 FKF Constitution with the Constitution of Kenya and the Sports Act.
17. By another letter dated 15th November 2019, the Registrar once again wrote to FKF asking for the registration of county sports associations. The Registrar stated that she had been informed by supposed interim officials/representatives of various county associations that FKF had refused/failed to issue them with application forms for their registration. The Registrar further stated that she would proceed to issue the forms to the many requests she had received from various counties.
18. During the hearing, with leave of the Tribunal, counsel for FKF yielded part of the time allocated to him to Mr. Nick Mwendwa, FKF’s President to make an opening statement. In his statement, Mr. Mwendwa explained that FKF had found it important that he attends the hearing and present some points that would enlighten the Tribunal and highlight the issues arising.
19. He explained that FKF had found itself before the Tribunal for two reasons; On 3rd December 2019, the Tribunal arrived at a decision in SDTS Case No. 21 & 24 of 2019 directing that FKF should engage with its stakeholders in public participation in the formulation of the new Electoral Code and to reconstitute the Electoral Board for the elections of 2019 that had been since declared null and void. Whilst FKF sought to comply with the Tribunal’s orders, they experienced frustration because they received communication from the Sports Registrar requiring them to undertake certain things with which they did not agree. FKF tried to engage the Registrar but she remained inflexible and it therefore became necessary to resort to the Tribunal.
20. Mr. Mwendwa was at pains to explain to the Tribunal the structure of football in Kenya and the sacrifice that club owners or managers have to make to run their clubs with limited resources. He explained that after the decision of the Tribunal on 3rd December, 2019 FKF had put in place mechanisms to undertake public participation and had reconstituted the Electoral Board and had arranged a Special General Meeting(‘SGM’) at which members passed the revised Electoral Code and approved the Electoral Board. He emphasised that FIFA had recognized the efforts made and had given FKF until 30th March 2020 to hold its elections. He expressed the fear that failure to comply would invite a potential ban for Kenya by FIFA which would have grave repercussions for Kenya’s football players in view of the various events scheduled.
21. Counsel for FKF, Mr. Omwebu on his part premised his submissions on various issues raised in the two consolidated cases, the first being whether the FKF Branches ought to be registered as County Sports Associations and if so, whether such requirement is a mandatory prerequisite for the conduct of FKF elections.
22. It was his argument that a proper interpretation of the Sports Act, 2013 and the Sports Registrar’s Regulations of 2016 do not require that a national sports organization should register county sports associations or at all. He expressed the view that to register county sports associations as demanded by the Registrar would result in chaos, constraints and delays if each of the 48 counties of FKF were to pass their own Constitutions and present these documents for registration as demanded by the Registrar and that this could potentially lead to conflict between the branches and FKF.
23. With respect to the question of public participation in the formulation of a new electoral code and the reconstitution of the electoral board, Mr. Omwebu submitted that it was clear from the material placed before the Tribunal that the exercise of public participation and stakeholder engagement had been intense, extensive, all-inclusive and successful with participants drawn from the branches, sub-branches, referees, club officials, coaches (both current and former), match commissioners and former players.
24. As to whether the SGM held on 28th January, 2020 was properly convened and constituted and therefore gave rise to valid resolutions, FKF submitted that the convocation dated 14th January 2020 was addressed to all members who make up the SGM. It also conformed to Article 31 (4) and (5) of the FKF Constitution 2017 which provides that members should be notified of the place date and agenda at least 14 days before the date of the SGM and further that the Notice should contain the Agenda of the SGM. Mr. Omwebu submitted that the Notice of 14th January 2020 was in tandem with the above provision.
25. Further, it was submitted that it is a matter of public interest that there ought not be an institutional lacuna or vacuity in the legal framework for dealing with public affairs: and in the instant case, there should be no vacuum in the legal framework for passing the Electoral Code for the upcoming FKF election.
26. On the question whether the eligibility criteria for clubs voting at the FKF county and sub county level as set out in the 2019/2020 Electoral Code is valid, FKF submitted that Article 35(2) and (3) of the 2017 FKF Constitution provides that “each club that is duly registered by FKF will be eligible to vote and that each club shall have one vote.” Article 35 (5) further provides that the “county representatives shall be elected by clubs registered in the county.”
27. With regard to whether there exists a valid FKF Appeals Committee, FKF submitted that Article 64(1) (c) of the 2017 Constitution establishes the FKF Appeals Committee which is one of the standing committees of FKF and under Article 67(2) of the 2017 Constitution, it is the committee’s responsibility to hear appeals against all decisions determined by all FKF committees including the Elections Board designated as the Electoral Committee under the Standard FIFA Electoral Code.
28. As to the question whether the application of the FIFA Standard Electoral Code in relation to FKF elections especially Article 4(3) is mandatory, that by a letter dated 10th February 2020, FIFA wrote to FKF acknowledging receipt of the new Electoral Code and Electoral Board member’s names and underscored the fact that the FKF Electoral Code is the sole binding document pertaining to the upcoming FKF elections as read together with the FKF statutes as the FIFA Standard Electoral Code was “of informative nature only”.
The Registrar’s Case
29. The Registrar was represented by State Counsel, Mr. Munene who addressed the Tribunal on the various issues raised by FKF.
The Registrar’s position is as set out in her extensive replying affidavit in which she emphasized that all the communication and directives that she issued to FKF were lawful and in accordance with the provisions of the Sports Act and the Regulations.
30. The Registrar further submitted that FKK’s 2017 Constitution had failed to address various issues and therefore fell short of the requirements for a valid constitution.
31. The Registrar explained that she had requested FKF’s President to visit her office several times to discuss the forthcoming elections and so that she could advise him regarding the regulatory structure but he had declined the invitation and this had prompted her letter of 15th November 2019 cancelling the last elections which were then scheduled for 23rd November 2019. The reason for cancellation of the elections was due to non-registration of County Sports Associations who were supposed to elect the officials of the FKF. She explained that it would not be proper for FKF to hold election for county sports associations that have not been registered with the Registrar’s office.
32. The Registrar further submitted that FKF had collected 47 registration forms on 9th August 2019 but these had not been returned. She wondered why FKF had collected these forms but had not returned them and expressed the fear that this might be because the identified officials might have integrity limitations.
33. The Registrar was firm in her view that Regulation 4 provides that football county sports associations or football clubs that are not registered should not participate in the elections. Further, FKF was required to provide evidence of branch offices in at least 24 branches though this requirement was to be achieved progressively within 3 years.
34. The Registrar concluded by arguing that it would be untenable to accept and receive returns from FKF of newly elected officials as the terms of office of the present officials had expired and it was necessary for an interim committee to be set up to ensure County Sports Associations and Premier League Clubs were registered with urgency to enable credible election for FKF and to ensure that Kenya is not banned by FIFA. However, in the event that FKF failed to conduct elections within a given time frame, the Tribunal should constitute an interim Committee to handle the FKF elections according to the required provisions of the Constitution 2010, the Sports Act, Sports Registrar Regulations and FIFA statutes; or direct the Cabinet Secretary under section 54 of the Act to appoint any person or committee to assume the management, control and conduct of the affairs FKF.
The Interested Parties and the Cross-Petitioners (SDTC No. 3 of 2020) and Cheptiret United Football Club & Bondeni United Football Club’s (SDTC No. 5 of 2020) Case (jointly ‘the Challengers’)
35. The challengers seek various declarations in relation to the process leading up to the elections and in particular the convening of the Special General Meeting(SGM), the validity of the decisions at the meeting, the constitution of the Electoral Board and the Appeals Board, various provisions of the Electoral Code, compliance with previous decisions of the Tribunal including the question whether public participation was conducted in accordance with the decision of the Tribunal rendered on 3rd December 2019 culminating in a consequential order to the effect that the intended elections were unlawful for non-compliance with the applicable law.
36. There was also a challenge to the FKF Constitution 2017 on the basis that it had not been approved for registration by the Registrar.
37. The challengers also joined with the Registrar in attacking the structure of FKF on the basis that its branch and sub-branch organization was purely administrative.
38. With respect to the voting structure, the challengers contended that to say that there were only 78(or 94) members of the FKF would be improper because such an interpretation presupposes that the 6000 clubs are not members of any National Sports Organization and that it would presuppose that the 6000 or so clubs were bound by the constitution of FKF, had obligations to FKF but received no membership rights whatsoever. In their submission, this interpretation was completely inconsistent with the provisions of Article 11(2) of the FKF Constitution 2017 which contemplates admission to membership on application by legal person wishing to become a Member of FKF. In the challengers’ view, this position was inconsistent with the fact that these clubs were allowed to participate in County and Sub-County elections.
39. The challengers urged the Tribunal to adopt a holistic interpretation of Article 11(1) and to interpret the article alongside the other provisions of the FKF Constitution, the Electoral code and actual practices of the Federation as evidenced by the references to clubs as members in the so- called consultative meetings on the electoral code that would see the 6000 football clubs in Kenya declared bona fide members of FKF. They relied on the case of In the Matter of the Kenya National Human Rights Commission, Advisory Opinion No. 1 of 2012; [2014] eKLR, (SC) where the court advised for a wholesome interpretation of the constitution, stating that:
“…But what is meant by a holistic interpretation of the Constitution" It must mean interpreting the Constitution in context. It is the contextual analysis of a constitutional provision, reading it alongside and against other provisions, so as to maintain a rational explication of what the Constitution must be taken to mean in light of its history, of the issues in dispute, and of the prevailing circumstances. Such scheme of interpretation does not mean an unbridled extrapolation of discrete constitutional provisions into each other, so as to arrive at a desired result.”
40. It was pleaded that the notice convening the SGM fell two days short of the requirement of the FKF Constitution of 2017. Quite apart from the legality of the constitution, Article 31(4) of the said constitution provides as follows; ‘The Members shall be notified of the place, date and agenda at least fourteen days before the date of a Special General Assembly’. The challengers therefore implored that the Tribunal find the meeting of 28th January 2020 was not convened in accordance with the declared constitution and was attended by persons who were not eligible to attend the meeting and accordingly, that the output of that meeting, specifically the FKF Elections Board 2020 and the FKF Electoral Code 2020 be treated as the fruits of the forbidden tree and be declared a nullity in law.
41. Regarding the issue of compliance with the Orders of the Sports Registrar, the challengers joined with the Registrar in insisting on substantial compliance with the Sports Act as to registration of County Sports Associations, registration of clubs and registration of a Constitution that complies with the Constitution of Kenya 2010. The Petitioners agreed with the Sports Registrar that compliance was both necessary and mandatory and stated that some of the issues in contention such as which clubs are registered in which county and who are their officials could easily be resolved if there was compliance.
42. Submitting on the question of public participation on the 2020 FKF Electoral Code, the challengers urged the Tribunal to find that this did not meet the constitutional threshold, wherefore the adoption of the FKF Electoral Code 2020 was unconstitutional null and void. The challengers submitted that the so-called public participation meetings were actually branch meetings at which only selected members were allowed to attend meaning that the constitutional threshold for public participation had not been met.
43. On the issue whether Section 4(2) of the 2020 FKF Electoral Code unfairly and unreasonably denied the aspirants and a significant proportion of the FKF membership the right to nominate candidates and vote at the 2020 elections, the challengers argued strenuously that the Sports Act 2013 as read with Article 81 of the Constitution of Kenya 2010 guaranteed universal suffrage and that this had been clawed back by Section 4(2) of the Code. They added that the criteria excluded clubs that have been playing in the sub-branches, most of which have now been constituted as counties from proposing and voting for candidates going to run football in their own counties. According to them the right to vote and nominate candidates was restricted to a few elite clubs playing in the specified leagues.
Discussion
44. In order to appreciate the backdrop against which the contest between FKF and the Registrar arises, it is necessary to point out certain salient features of the FKF Constitution.
The FKF Constitution
45. In the year 2015, FKF’s General Assembly resolved to review the 2012 FKF Constitution. Following such review, FKF applied to the Registrar for registration and on 24th May 2018, it was duly registered as a National Sports Organization under Section 47 (1) of the Sports Act, 2013. It was then issued with a Certificate of Registration as formal proof that it had complied with the Sports Registrar’s requirements under the Act.
46. On 18th November 2017, FKF’s General Assembly ratified a new constitution which came into force on 1st February, 2018 save for organizational transition envisaged under Article 89 thereof which relates to the elections under County Branches, Sub-County Branches and the National Executive Committee as set out at Articles 35, 36 and 37.
47. The review introduced a new administrative structure for FKF premised upon the 47 counties of Kenya with Nairobi County split into two. Therefore, we now have 48 counties of FKF representing the branches of FKF and 290 sub-counties also referred to as the sub-branches comprising of the 290 constituencies of Kenya.
48. The review also amended the membership of FKF. Article 11 of the constitution states that the members are as follows:
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;
f) The FKF recognized Association for Football Referees;
g) The FKF recognized Association for Football Coaches;
h) The FKF recognized Association for Football players;
i) The FKF recognized Association for Women’s Football. The FKF Women’s Premier League representing both the Women’s Premier League and Women’s Division One League.
Structure of the Sports Act (‘the Act’) and Sports Registrar’s Regulations (‘the Regulations’) with respect to registration Office of the Sports Registrar
49. Part VI of the Act provides for the registration and regulation of sports and licensing.
50. Section 45 provides for the establishment and functions of the Sports Registrar as follows:
(1) There shall be an office of the Sports Registrar which shall be an office within the Public Service.
(2) The Public Service Commission shall appoint the Sports Registrar who shall be—
(a) in charge of the office of the Sports Registrar;
(b) responsible for the registration and regulation of sports organizations and multi-sports bodies representing sports organizations at the national level, in accordance with the provisions of this Act;
(c) responsible for the matters relating to the licensing of professional sports and professional sports persons in accordance with the provisions of this Act; and
(d) responsible for the arbitration of registration disputes between sports organizations.
(3) The Registrar shall keep and maintain a register of the registered sports organizations and such other particulars relating to the registered sports organizations as may be prescribed.
(4) The Registrar shall issue licences for professional sports in accordance with the regulations and the requirements that the Cabinet Secretary may prescribe and any other relevant law.
(5) A copy of an entry in the register certified by the Registrar shall, for purposes of any written law, be prima facie evidence of the facts stated in the certificate.
51. With respect to registration of sports organizations, the Act provides as follows at Section 46:
(1) A body shall not operate as a sports organization unless it is registered under this Act.
(2) The Registrar shall register sports organizations as either—
(a) a sports club;
(b) a county sports association; or
(c) a national sports organization.
(3) An application for registration of a national sport organization shall—
(a) be submitted to the Registrar; and
(b) be in the prescribed form and shall specify—
(i) the name of the sports organization;
(ii) the category under which it is to be registered;
(iii) the office-bearers of the applicant;
(iv) the head office and postal address of the applicant;
(v) sources of funding of the applicant;
(vi) national and international affiliation, if any; and
(vii) such other information as the Cabinet Secretary may prescribe.
(4) An application for registration under this section shall be accompanied by—
(a) a certified copy of the constitution of the applicant; and
(b) such fees as the Cabinet Secretary may prescribe.
(5) A constitution submitted under subsection (3) shall contain, as a basic minimum, the provisions set out in the Second Schedule.
(6) All national sports organizations registered under this Act shall be open to the public in their leadership, activities and membership.
(7) A certificate of registration issued under this section—
(a) shall be conclusive evidence of authority to operate throughout the country as may be specified in the certificate of registration; and
(b) may contain such terms and conditions as the Registrar may prescribe
52. Section 47 then provides for the issuance of a certificate of registration as follows:
(1) A national sports organization registered under this Act shall be issued with a certificate of registration in the prescribed form.
(2) The Registrar shall not register more than one national sports organizations run any one discipline.
53. In 2016, the Sports Registrar’s Regulations (‘the Regulations’) were incorporated into the Sports Act as subsidiary legislation pursuant to Section 72 of the Act which is in the following terms:
The Cabinet Secretary may make regulations—
(a) generally for the better carrying into effect the provisions of this Act; and
(b) prescribing anything that may be prescribed under this Act.
54. It bears pointing out at this stage that in accordance with Section 31 of the Interpretation and General Provisions Act, Chapter 2, no subsidiary legislation shall be inconsistent with the provisions of an Act.
55. Part VI of the regulations make provision for Elections and Rule 20 (1) thereof provides that an organisation shall hold elections in accordance with the rules provided for in its constitution. This is in consonance with the Second Schedule to the Sports Act which sets out the matters to be provided for in the Constitutions of Sports Organizations as follows:
The constitution of a body seeking registration as a sports organization shall provide that—
(a) elections of officials and athletes representatives at the national, branch and sub-branch levels shall be done directly by club representatives club members;
(b) only citizens of Kenya shall be eligible for election as the chairperson, secretary or treasurer of a body at the national level;
(c) the elections contemplated in paragraph (a) above shall be held at regular intervals after a period of between two years and four years, and persons elected as officials thereof shall consequently hold office as follows—
(i) the chairperson shall hold office for a term not exceeding four years, but is eligible for re-election for one more term;
(ii) any other official shall hold office for a term not exceeding four years, but is eligible for re-election for one more term.;
(d) elections shall be held in accordance with the general principles for the electoral system as stipulated in Article 81 of the Constitution;
56. Part II of the Sports Registrar’s Regulations then provides for registration of sports bodies at Regulation 4 follows:
(l) A sports organization may apply to the Registrar to be registered as a sports club, a county sports association or a national sports association.
(2) The application for registration of a sports organization shall be made in the Form A set out in the First Schedule.
(3) Subject to section 46 of the Act, an application for registration of a sports organization shall be accompanied by-
(a) a short term, medium term and long-term strategic plan;
(b) an updated register of all affiliates, clubs, officials and athletes;
(c) for national governing bodies, evidence of branch offices in at least twenty four counties either at the time of application which number shall be progressively achieved within three years, unless the nature of the sport is such that it cannot be established in several counties; Contents of constitution Application for registration.
(d) the national sports federation responsible for the registration of the organization's branches and sub-branches
(e) for county sports associations, the club or sub-county sport organization affiliated to it;
(f) a copy of logos and emblems of the sports body;
(g) certified copies of certificates of compliance for the body seeking registration or the officials proposing registration of the organization including value added tax certificate, Kenya Revenue Authority Personal Identification Number certificate, National Social Security Fund certificate and National Hospital Insurance Fund certificate;
(h) certified copies of clearance certificates of the Chairperson, Secretary and Treasurer of the organization from the Criminal Investigation Department, the Ethics and Anti-Corruption Commission, Kenya Revenue Authority, Credit Reference Bureau, and Higher Education Loans Board or such other clearance as may be determined from time to time by the Registrar;
(i) audited accounts with reports on all its activities and the use and disbursement of all its funds for its preceding financial year together with such other reports as the Registrar may require from time to time;
(j) identification documents of the officials proposing registration of an organization; and
(k) a certified copy of certificate of registration.
(4) Where an organization is applying for registration for the first time, the organization may use the particulars of an interim official;
(5) Where an organization applying for registration is a county–sports association or County sports club, the requirements for registration shall apply with necessary modifications.
(6) The Registrar may, within ninety days of the date of receipt of the application issue a certificate of registration in the Form B set out in the First Schedule
57. Part V then provides for Elections and Rule 20 specifically provides that an organization shall hold elections in accordance with the rules provided in its constitution.
58. The Sports Registrar has set out in her extensive affidavit what she considers to be the relevant provisions of the Act and the Regulations with respect to registration of sporting organisations.
59. At paragraph 10 of her replying affidavit, the Registrar depones as follows:
That section 46 (2) of the Revised Sports Act of 2013 empowers the Sports Registrar to register sports organisations as either a sports club, a county sports association or a national sports organization and therefore allowing county sports associations or sports clubs that are registered by FKF and not the Sports Registrar to hold elections and vote in officials of FKF or County will be allowing non-existent bodies/illegal bodies that are not recognized under the law to operate as a sports organizations and participate in elections/activities of FKF/ a sports organization, and hence violating the provisions of section 46(1)and(2) of the Sports Act that a sports organization need to be registered under the Sports Act by the Sports Registrar for them or it to be legal.
60. As we understand it therefore, the Registrar is asserting that unless a National Sports Organization registers county sports associations as branches, such county sports associations cannot participate in the elections of FKF as they would be non-existent or illegal bodies, therefore not recognized in law. This assertion therefore brings us to a consideration of the place of county sports organisations within the statutory framework of the Sports Act and their relationship to national sports organisations.
61. We have already set out the provisions of Section 46 of the Act which relate to registration of sports organisations. As we can find nothing in section 46 which obliges national sports organisations to register county sports associations, this requires us to examine the Regulations in order to interrogate further the above averment in the Registrar’s replying affidavit.
62. The regulations define “branch” to mean ‘the organizational unit of a national sports body at the county level’. This would seem to suggest that the regulations recognize and anticipate that a national sports organization may have branches at the county level which are merely organisational units and do not have separate legal existence from the national sports organization. ‘County sports association’ is then defined to mean a ‘branch of a national sports body whose area of participation is within a county or a sports organization whose reach is only within a county’. This definition, juxtaposed against the definition of ‘branch’, suggests that the regulations allow latitude for three (3) structures: either a branch at the county level which is merely an organizational unit without a separate legal existence; or a branch which is a county sports association which has separate legal existence in terms of Section 46 of the Act; alternatively, that a county sports organization can be a stand-alone sports organization with legal existence under Section 46 of the Act but whose reach is only within a county.
63. ‘Sub-branch’ is then defined to mean the organizational unit of a national sports body or its branch at the district or sub county level.
64. And finally, for the purpose of this discussion, ‘member’ is defined to mean an individual or a body affiliated to a sports organization.
65. Regulation 4 then deals with applications for registration and sets out the manner and format in which such applications will be made. Of relevance is regulation 4(3)(c) which requires that with respect to applications for registration of national governing bodies, the Registrar would require “evidence of branch offices in at least 24 counties either at the time of application which number shall be progressively achieved within 3 years…”
66. Pausing there for a moment, and adverting to the definitions of ‘branch’ and ‘county sports association’, it would appear to us that a proper construction of the regulations leads to the conclusion that a national governing body can elect to have its branch offices either as organizational units in which case they have no separate legal existence from the national governing body; or as county sports associations in which case they have separate legal existence under section 46 of the Act, but are nonetheless affiliated to a national sports organization as a branch.
67. FKF has argued that to require it to register county sports associations in every county as demanded by the Registrar would essentially mean that each branch, being a county sports association, would have a separate legal existence with separate constitution, logo, strategic plans and all the other requirements under Regulation 4(3). The Tribunal agrees that this requirement would be unwieldly, expensive and difficult to govern. Indeed, insistence on the interpretation that each branch must be registered as a county sports organization with separate legal existence is akin to requiring KCB Bank or East African Breweries to incorporate a separate company to run its business in every county.
68. The purpose of the Act as can be discerned from the Preamble is to promote the development of sports within the country. In order to achieve this objective, the Act and the Regulations must be construed in the way which allows the most effectual achievement of this objective. Such construction must take into consideration the resources available to the citizenry for investment in sport, the facilities and infrastructure put in place by both the national and county governments for the promotion of sports, and the recognition that the attainment of the objectives of the Act must be progressive.
69. Whilst the requirement that national sports organizations must have branches in at least 24 counties is a laudable and will no doubt enhance the promotion and development of sports, the unfortunate reality is that the Tribunal’s interaction with many sports federations has left the impression that the Registrar’s interpretation and implementation of the regulations has hitherto been narrow and constricts rather than promotes the expansion of sports throughout the country. For instance, quite apart from the arguments placed before the Tribunal in this matter, the Tribunal has in its archives this extract from a report carried in the Star of 9th May 2019:
Sports federations have expressed the challenges which have hindered their compliance with the Sports Act 2013, five years since the enactment of the law.
Speaking during a stakeholders forum spearheaded by Sports Cabinet Secretary Amina Mohammed, federation heads observed that it is extremely difficult to have branches in at least 24 of the 47 counties countrywide.
“We (Kenya Volleyball Federation) are fully compliant with Sports Act 2013 but our biggest challenge is to establish branches in at least 24 counties,” said KVF president Waithaka Kioni. “We have really outdone ourselves in ensuring representation in 20 counties.”
“In addition, despite sports being a devolved function (under Constitution of Kenya 2010), counties are yet to take it up and every time we knock on their doors for facilitation, they claim they have no money. Others have money but have deliberately sidelined sports. What do we do? quipped Kioni.
“The biggest problem in complying with Sports Act 2010 is lack of structures,” said National Olympic Committee of Kenya, secretary general, Francis Mutuku. “The aspect of transition is also a big challenge. Sports federations have existed since pre-independence and during the transition, a lot of history was lost between the then system of registration and the current one, which created a lot of problems in leadership.”
“The introduction of counties as federation branches is also a handful. Historically, sports are underfunded and therefore have not been able to spread across counties. However, Sports Fund expects federations to be compliant to the effect that they must have 24 branches in the counties before registration. That takes time and money,” said Mutuku. “The idea is excellent but how do we ensure that it is effectively addressed and implemented?
He added: "It is ‘extremely challenging’ dealing with federations which are not compliant. The simple fact is that if you are not compliant, you are not recognised. But we (NOCK) are about Olympism, about sports. We can't abandon athletes because the administrative aspect of where they operate (from) has not been fulfilled,” said Mutuku.
“Recently, we had a rowing and canoeing athlete who went to Malawi and won gold but his federation is not registered. Should we leave him alone? No! And sport in Kenya being such a short window, we cannot afford to let an athlete lose such an opportunity.”
Kenya Shooting Sports president Shoaib Vayani echoed Mutuku and Kioni’s sentiments on the need for a rethink of some of the regulations under Sports Registrar and provisions of the Sports Act 2013.
“For us as shooting sports, we are under Firearms Act, Chapter 114, and it is therefore impossible for us to have activities across the country,” said Shoaib, adding that owning a gun is also a tedious, expensive and thorough process with numerous limitations.
During the forum, it was also evident that federations are not fully aware of the mandate of the National Sports Fund and the criteria used to allocate funds.
However, Amina observed that forums like yesterday’s will help stakeholders discuss and understand challenges in sports and together draw a roadmap owned by all going forward.
70. The requirement for the establishment of branches in the counties without corresponding investment by government in stadia and other infrastructure for sporting activity in those counties will not result in the realization of the objectives of the Act. Indeed, when the Tribunal gives consideration to the likely cost of compliance with Regulation 4(3) it becomes self-evident that the construction insisted on by the Registrar constitutes a burden on many sporting organisations which have limited sources of revenue, are largely unsupported by either national or county government and depend to a great extent on well-wishers and sponsors to finance their activities.
71. Under Regulation 4(3)(g), the body or officials seeking registration must produce Value Added Tax certificate, Kenya Revenue Authority Personal Identification Number certificate, National Social Security Fund certificate and National Hospital Insurance Fund certificate. In addition, persons seeking office of county sports organizations as chairperson, secretary and treasurer are required to produce clearance certificates from the Criminal Investigation Department, the Ethics and Anti-Corruption Commission, Kenya Revenue Authority, Credit Reference Bureau, and Higher Education Loans Board, “…or such other clearance as may be determined from time to time by the registrar.” In addition to these, all applications for registration of sporting organisations attract a fee imposed by the Registrar.
72. In order to achieve the threshold of 24 counties set out at regulation 4(3)(c), it becomes clear that the cost of compliance, if the Registrar’s construction of the regulations is to be accepted, becomes oppressive rather than facilitative. In addition, the requirement that the chairperson, secretary and treasurer should procure certified copies of clearance certificates from the Higher Education Loan Board suggests that persons aspiring to these offices, whether at national or at county level, must have undergone education at an institution of higher learning. This would appear to be inimical to the provisions of section 46(6) of the Act which provides that all National sports organisations shall be open to the public in their leadership, activities and membership.
73. In Hon Johnson Muthama vs Minister for Justice and Constitutional Affairs & Anor [2012] eKLR Hon. Justice Mumbi Ngugi considered the constitutionality of various provisions of the Elections Act against the electoral principles in Article 81 of the Constitution of Kenya in relation to provisions which addressed the educational qualifications of candidates for various elective positions. At para 70 the learned Judge declared provisions of the Elections Act which barred persons not holding a postsecondary school qualification from being nominated as candidates for elective office or for nomination to parliament to be unconstitutional and in violation of the petitioners’ rights under the constitution.
74. Accordingly, this requirement is clearly unconstitutional and cannot be sustained.
75. Further, the avenue allowed under Regulation 4(4) to the effect that where an organization is applying for registration for the first time, the organization may use the particulars of an interim official could potentially be used by national sport organizations to subvert the democratic process required under the Second Schedule to the Act and bring into the leadership of a county sports organization persons who are ‘sponsored’ by the national organization and have no support amongst the sporting fraternity at the county level.
76. The Tribunal is therefore unable to accept the assertion at paragraph 15 of the Registrar’s replying affidavit that it is “the responsibility of FKF to initiate the process of registration (of county sports organisations) before the Sports Registrar and that is why regulation number 4(3)(c) obliges them to do so”.
77. If it was the intention of the regulations to require that branches of national sports organisations must necessarily be county sports organisations, then nothing would have been easier than to omit “branch” from the definitions at regulation 2 which deals with interpretations so that it would be clearly understood that county sports association only meant the branch of a national sports body whose area of operation is within a county.
78. Flowing from the foregoing it becomes easy to understand why FKF picked the 47 forms from the Registrar’s office because it was trying to find its way towards achieving compliance in accordance with the narrow interpretation of the regulations imposed by the Registrar. The fact that FKF picked the registration forms but did not return them does not somehow validate the Registrar’s position.
79. The Constitution of Kenya at Article 6 provides for ‘Devolution and access to services’ as follows:
(1) The territory of Kenya is divided into the counties specified in the First Schedule;
(2) The governments at the national and county levels are distinct and inter-dependent and shall conduct their mutual relations on the basis of consultation and cooperation;
(3) A national State organ shall ensure reasonable access to its services in all parts of the Republic, so far as it is appropriate to do so having regard to the nature of the service.
80. So, for instance, Section 3(6) of the Sports Act provides as follows with respect to Sports Kenya:
Sports Kenya shall ensure access to its services in all parts of the Republic in accordance with Article 6(3) of the Constitution.
81. Section 46 of the Act which establishes the office of the Registrar of Sports has no similar provision.
82. Clearly, if we are to find that it is a mandatory requirement that national sports organizations must register county organisations as branches, then it would be necessary that the Office of the Sports Registrar comply with Article 6(3) of the Constitution of Kenya so that there are established in each county the office of County Sports Registrar to facilitate registration of county sports organizations in the various counties. Providing that the office of the Registrar remains based in its citadel in Nairobi, it would be artificial, inflexible and an undue hardship on national sports organizations to limit them to only having county sport organisations as branches.
83. In conclusion, it is the Tribunal’s view that national sports organisations are at liberty under the regulations to have branch offices which are organizational units at the county level in which event there is no requirement for a separate registration of those branch offices under the Act or the Regulations, or to have branches which are county sports associations in which event those branches would be registered in accordance with Section 46 of the Act and would have a legal existence quite apart from that of the national organization. This construction allows national sports organisations to determine for themselves the most efficient and cost-effective mechanism for the establishment and governance of their branches.
84. Regulation must be tempered with facilitation and it is the responsibility of the Registrar to adopt the stance that best promotes the growth and development of sports in Kenya.
Status of the FKF Constitution 2017
85. Next the Tribunal must pronounce itself without equivocation on the status of the FKF Constitution 2017 as this will be central to a consideration of many of the issues urged before the Tribunal.
86. In its decision in SDT Case No. 21 and 24 of 2019, the Tribunal expressed some uncertainty as to the status of the FKF Constitution 2017. However, having regard to the averments in the Registrar’s replying affidavit in the present proceedings to the effect that FKF was issued with a certificate No. 45 of 24th May 2018 after submitting an amended constitution, it would appear to the Tribunal that the certificate of registration was issued on the basis of the FKF Constitution 2017. This arises from a reading of section 46 (4) of the Act which provides as follows:
An application for registration under this section shall be accompanied by— (a) a certified copy of the constitution of the applicant.
87. To the extent therefore that the Registrar issued a certificate of registration, the constitution that accompanied the application for registration must be considered to be the constitution of the sports organization. The fact that the Registrar issued the certificate with conditions is a separate matter that does not invalidate the constitution.
88. The Registrar has set out at paragraph 33 the matters she considered that the FKF Constitution of 2017 had failed to address. We have given consideration to these matters which the Registrar complains that FKF failed to address and will withhold comment on them as they have not been placed before the Tribunal for determination. Suffice it to state that we do not consider the concerns raised by the Registrar sufficient to invalidate the FKF Constitution 2017 and we direct that once a new NEC is voted into office, it will take the necessary steps, within 90 days from the date of ascendancy into office, in consultation with the Registrar, to ensure that the FKF Constitution 2017 adheres strictly to the Constitution of Kenya 2010, the Sports Act and FIFA Statutes
The Regulations and Elections
89. Having reached the conclusion that we have with respect to compliance with the Regulations, it follows that FKF could not possibly be in violation of the Act because it sought to hold elections without registering county sports associations, and it was sufficient that it should demonstrate that it had a branch structure through at least 24 counties as stipulated under the regulations.
90. Regulation 20(1) provides that an organization shall hold elections in accordance with the rules provided in its Constitution.
91. The Second Schedule to the Act provides that the constitution of a sports organization shall provide that elections of officials at the national, branch and sub-branch levels shall be done directly by members.
92. It follows therefore that it is necessary to establish who the members of FKF are and what its constitution prescribes with respect to the holding of elections.
93. The regulations merely define ‘member’ to mean an individual or body affiliated to a sports organization.
94. Articles 10 to 20 of the FKF Constitution 2017 deal with the question of membership. Article 11(1) sets out who the members of FKF are and Article 13 sets out the member’s rights which include the rights to:
a. Take part in the General Assembly of FKF, to receive its agenda in advance, to be called to the General Meeting within the prescribed time and to exercise their rights to participate in the debates and discussions and to exercise their voting rights;
b. Draw up proposals for inclusion in the agenda of the General Assembly;
c. Nominate candidates for elections to all bodies of FKF;
d. Be informed of the affairs of FKF through the official bodies of FKF;
e. Take part in competitions if applicable and/or other sporting activities organized by FKF; and
f. Exercise all other right arising from the Constitution and regulations of FKF.
95. With specific respect to elections, Article 23 deals with delegates and votes, and sets out extensively the composition of the delegates who would attend at the general assembly and exercise the right to vote. Article 27 then deals with elections and provides at 27(5) as follows:
Elections shall be conducted first at the County level, then the National level and finally, at the sub-county level.
96. Article 28 then deals with national elections.
97. As we understand it, it is the provision at Article 27 (5) which is the gravamen of the Cross-Petitioner’s assertion that the system of elections as outlined in the FKF Constitution 2017 is unconstitutional as it is designed to disenfranchise the clubs at the sub-branch level. This assertion has caused the Tribunal considerable anxiety in view of the requirement at the Second Schedule to the Act that elections shall be held in accordance with the general principles for the electoral system as stipulated at Article 81 of the Constitution of Kenya 2010.
98. Article 81 of the Constitution of Kenya sets out the general principles of the electoral system as follows:
The electoral system shall comply with the following principles—
a. freedom of citizens to exercise their political rights under Article 38;
b. not more than two-thirds of the members of elective public bodies shall be of the same gender;
c. fair representation of persons with disabilities;
d. universal suffrage based on the aspiration for fair representation and equality of vote; and
e. free and fair elections, which are
i. by secret ballot;
ii. free from violence, intimidation, improper influence or corruption;
iii. conducted by an independent body;
iv. transparent; and
v. administered in an impartial, neutral, efficient, accurate and accountable manner.
99. Of relevance to the challenge by the Cross-Petitioners is the principle of universal suffrage and the contention that the provision for elections to be conducted at the sub-county level after those at the county and national level effectively denies the clubs at the sub-branch level the right to participate in the choice of leaders at the national level.
100. Universal suffrage simply refers to the right of all adult citizens, subject to qualification, to vote at an election. The question therefore is whether there is justifiable basis for excluding clubs at the sub county level from voting at the national level.
101. This issue takes us back to a consideration of the structure of membership of FKF which we have identified as being set out at Articles 10 to 20 of the FKF Constitution 2017. We have already identified the members of FKF and it is instructive that sub-counties are not listed as members and cannot therefore exercise the members’ rights set out at Article 13. Therefore, the assertion of disenfranchisement, whilst appearing to be potent, must necessarily find its bite in the demonstration that the sub-counties are members of FKF with rights under the FKF Constitution bearing in mind that Regulation 20 provides unequivocally that elections shall be held in accordance with the rules that have been provided in an organisation’s constitution.
102. The Tribunal has perused very carefully the affidavit of Samson Nyamweya Keengu in support of the cross-petition as well as the affidavits of David Simiyu Lugoye and Charity Auma Wangoma in support of the SDT Case No. 5 of 2020 and can find no assertion that sub- counties are in fact members of FKF.
103. Certainly, there can be no doubt that clubs in the sub-counties participate in football activities. Such participation is, however, not sufficient to assert that a club or the sub-county has been disenfranchised. In order therefore to succeed in a challenge to the constitutionality of the provision of Article 27(5) of the FKF Constitution 2017, it would be necessary for the sub branches to demonstrate, as a threshold issue, that they are entitled to membership of the FKF. This is because it is such membership which confers upon them the right to vote. In the same way one cannot assert the right to vote at the national elections of the country just because one is an adult living in that country and participating in its social, economic and cultural activities unless one also carries the status of a citizen. It is for this reason that Article 38(3)(a) of the Constitution of Kenya decrees that every adult citizen has a right, without unreasonable restrictions, to be registered as a voter and to vote in any election or referendum.
104. Furthermore, a close scrutiny of Article 35 of the FKF Constitution deflects the allegation that the order of holding of elections disenfranchises the clubs at sub-branch level. This article deals with county representation and is in the following terms:
1. Each County Branch will elect six people in the position of Chairman, Secretary, Women Representative, Youth and Treasurer. The Chairman will select a running mate who will be the Vice Chairman.
2. Each club that is duly registered by FKF will be eligible to vote.
3. Each Club shall have one Vote
4. Each County shall have a total of nine (9) members in the executive. Six
(6) elected as per clause 1 above and three (3) elected from the sub county chairmen from that county. These three (3) members shall be elected by the elected chairmen of the sub counties either by consensus or by secret ballot.
5. The County representatives shall be elected by clubs registered in the County.
6. The County Executives will oversee all football operations at the County level and will be subordinate to the National Office.
105. Article 36 then provides for sub county representation as follows:
1. Each Sub-County will elect six people in the position of Chairman, Secretary, Women Representative, Youth and Treasurer. The Chairman will select a running mate who will be the Vice Chairman.
2. The Sub-County representatives shall be elected by clubs registered and playing in the respective Sub-County leagues.
3. The Sub-County Executives will oversee all football operations at the Sub County level and will be subordinate to the County Executive.
106. As can be seen from Article 35(4) above, the executives in the county necessarily include members drawn from the sub-county and the sub- county representation is in turn elected by clubs playing at the sub-county leagues. The fact therefore that county elections are held before the national elections, necessarily means that both county and subcounty representatives are able to participate in the voting at the national elections through their designated delegates.
107. To hold in favour of the challengers would be to do violence to the FKF Constitution 2017 which we must presume is a negotiated document duly ratified by the General Assembly. The Tribunal cannot substitute the view of the football stakeholders with its own views. The FKF Constitution 2017 already defines who its members are and the proper forum to alter this definition would be at a properly convened assembly of the FKF where the matter can be debated and the provision altered, if thought fit. It follows therefore that this limb of the challenge must fail.
Validity of the resolutions at the SGM
108. The next challenge is as to the resolutions passed at the SGM. This challenge is two pronged.
109. The first plank is that the notice convening the SGM was in contravention of Article 31(4) of the FKF Constitution 2017 which provides as follows:
The members shall be notified of the place, date and agenda at least 14 days before the date of a special general assembly. As we understand it, the challenge is premised on the fact that the notice was not issued at least 14 days prior to the SGM.
110. There was some contest between counsel for FKF and counsel for the challengers as to whether the notice was issued on the 14th or 16th January 2020. The notice itself is dated 14th January 2020 and the controversy was as to whether the email forwarding the notice was dispatched on 14th or 16th January.
111. The Tribunal does not, however, consider the dates on which the notice was dispatched to be determinative of the issue. The proper approach instead is to ask the question what is the effect of the failure, if indeed there was a failure, to comply with the constitutional time-line.
112. Charles v Judicial Legal Service Commission [2003] 1 LRC 422 was an appeal to the Privy Council from Trinidad and Tobago which concerned the effect of failures to observe time limits laid down by regulations dealing with discipline and misconduct in the public service. Giving the judgment of the Privy Council Tipping J (of the New Zealand Court of Appeal) observed, at pp 428-429, para 12:
"At the outset their Lordships observe that it seems highly unlikely that the Commission can have intended that breaches of time limits at the investigation stage would inevitably prevent it from discharging its public function and duty of inquiring into and, if appropriate, prosecuting relevant indiscipline or misconduct. A self-imposed fetter of such a kind on the discharge of an important public function would seem inimical to the whole purpose of the investigation and disciplinary regime."
He added at p 430, para 17:
". . . If a complaint is made about the non-fulfilment of a time limit the giving of relief will usually be discretionary. This discretionary element to which Lord Hailsham referred [in the London & Clydeside Estates case] underlines the fact that problems arising from breach of time limits and other like procedural flaws are not generally susceptible of rigid classification or black and white a priori rules. With this in mind their Lordships note that in the present case the delays were in good faith, they were not lengthy, and they were entirely understandable. The appellant suffered no material prejudice; no fair trial considerations were or could have been raised, and no fundamental human rights are in issue."
113. As far back as 1877, Lord Penzance observed as follows in Howard v Boddington (1877) 2 P.D. 203 on the distinction drawn between requirements which were 'imperative' on the one hand and 'directory' on the other:
"The real question in all these cases is this: A thing has been ordered by the legislature to be done. What is the consequence if it is not done? … There may be many provisions in Acts of Parliament which, although there are not strictly observed, yet do not appear to the court to be of that material importance to the subject matter to which they refer, as that the legislature could have intended that the non-observance of them should be followed by a total failure … On the other hand, there are some provisions in respect of which the court would take the opposite view… I believe, as far as any rule is concerned, you cannot safely go further than that in each case you must look to the subject matter; consider the importance of the provision that has been disregarded, and the relation of that provision to the general object intended to be secured by the Act; and upon a review of the case in that aspect decide whether the matter is what is called imperative or only directory." (210-211)
114. The Tribunal’s appreciation of jurisprudence from the Commonwealth is that the modern approach is not to be formalistic by imposing a rigid construction of the requirement to perform a function within a defined time but rather to focus on the effect of not performing the function in the stipulated timeline and whether such failure causes prejudice to those to whom it is intended to apply.
115. In this case it is not suggested the fact that the notice of the SGM, if indeed received on 16th rather than 14th January 2020 prejudiced any of those who were expected to attend the SGM; it is not alleged that by reason of such delay, they were unable to attend, carry out consultations or make some other specialized preparations for their participation at the SGM. The allegation that the members may not have been notified at least 14 days before the date cannot of itself invalidate the notice or the proceedings and resolutions reached at the SGM.
116. The opinion of the House of Lords in Regina v. Soneji and another1 offers some very useful insights into this approach.
117. The second plank of the challenge to the validity of the resolutions is based on the fact that the officials who participated in the SGM were not legitimate, their terms in office having expired on 26th January 2020 because they were elected into office for a four (4) year term on 26th January 2016. In other words, their attendance at the SGM effectively extended their term by two (2) days.
118. The challengers cite the decision of Mr. Justice (Rtd) John Mwera in Mohammed Omar (Suing as Chairman of, Secretary & Treasurer of KFF Coast Branch) vs. Maina Kariuki, Hussein Swaleh, Mohammed Hatimy (Sued as National Officials of KFF) [2004] eKLR where the court stated as follows:
The defendants have no capacity as per the governing KFF constitution to run its elections or do anything because their time in office has expired. There is no great fun or pride in having a constitution, whatever the body, that cannot be adhered to. Such conduct merely breeds chaos as now seen in KFF for whatever reason or motive. The culture of being governed by a group’s own rules and regulations as required and mandated must be seen and nurtured in any facet of a community’s activities.
In sum even had the court gone on to see, as it has done in whose favour balance of convenience should tip, it cannot tip in favour of the defendants whose time expired and so cannot do anything valid and lawful as regards running the affairs of KFF.
1 [2006] 1 Cr App R (S) 79, [2006] AC 340, [2005] 3 WLR 303, [2006] 2 Cr App R 20, [2006] 1 Cr App Rep
(S) 79, [2006] 1 AC 340, [2006] Crim LR 167, [2005] 4 All ER 321, [2005] HL 49, [2006] 2 Cr App Rep 20, [2005] UKHL 49
119. FKF counters by citing the decision of the Court of Appeal (Visram, Koome and Odek JJA) in Municipal Council of Nakuru v Reliable Concrete Works Limited [2014] eKLR, in which the Court was required to determine the constitutionality or otherwise of the Valuation Court arising from an allegation that it was not independent. In the course of considering the matter and the Court observed, relying on the decision of the Supreme Court in Communications Commission of Kenya & 5 Others – v- Royal Media Services Limited & 5 Others, to the effect that ‘…a Constitution does not envisage a vacuum in the flow of matters of legal consequences…’ the Judges stated that:
“…the Constitution neither operates in a vacuum nor creates a vacuum and it is a matter of public interest that there ought not be an institutional lacuna or vacuity in the legal framework for dealing with public affairs….”
120. The Tribunal takes cognisance of the fact that Mohammed Omar was decided before the advent of the Constitution of Kenya 2010 and prefers the more purposive principle set out in Municipal Council of Nakuru which is in any event a decision of the Court of Appeal decided in 2014 after the coming into force of the Constitution of Kenya 2010.
121. FKF also calls to its aid the de facto principle. This longstanding doctrine of the common law is summarized as follows in Wade and Forsyth, Administrative Law, 8th edition, at pp 291-292:
“The acts of an officer or judge may be held to be valid in law even though his own appointment is invalid and in truth he has no legal power at all. The logic of annulling all his acts has to yield to the desirability of upholding them where he has acted in the office under a general supposition of his competence to do so.”
122. However, we do not agree that the circumstances of this case fall within this doctrine.
123. We do, however, take cognizance of Article 43(2) of the FKF Constitution 2017 which provides that the President of the Federation stays in office until a new president is elected. We are also reminded in any event that in SDT Case No. 21 and 24 of 2019, the Tribunal specifically directed that the status quo at the Football Kenya Federation National Executive Committee be maintained pending fresh elections to be conducted once Football Kenya Federation has complied with the Orders of the Tribunal.
124. Having regard to fact that the stated purpose of the SGM related to matters concerning the elections, including the adoption of the electoral board and electoral Code, it would be absurd to strike down the resolutions of the SGM on the basis that the term of office of the members in attendance had expired two (2) days prior and the Tribunal refuses to accede to this proposition.
The Electoral Code (‘the Code’) and the Electoral Board (‘the Board’)
125. Having determined that the SGM was properly convened and that the resolutions passed were valid and proper, the next logical issue becomes the consideration of the question whether, despite these findings the flaws identified by the Cross-Petitioners in No. 3 of 2020 and the Petitioners in No. 5 of 2020 are bona-fide. The Cross-Petitioners have stated that the Code violates the principles and provisions of the FIFA Statutes and especially the FIFA Standard Electoral Code.
126. This was an issue which the Tribunal was required to pronounce itself on in SDT Case No. 21 & 24 of 2019. In its decision rendered on 3rd December 2019, the Tribunal agreed with the Cross-Petitioners that FKF had not adhered to the FIFA Standard Electoral Code (‘the FIFA Code’) in so far as it had not instituted the Board six (6) months prior to the assembly at which the elections were to be held.
127. It is clear that prima facie there has been no compliance with Article 4(3) of the FIFA Code and the question therefore is what the effect of such non-compliance should be. FKF on the other hand has drawn the Tribunal’s attention to the letter from FIFA dated 10th February 2020 in which FIFA stated as follows:
Finally, we remind the FKF that the four-year mandate of its incumbent executive committee will expire this month. Consequently, we deem fit to highlight that the FKF elections shall be completed at the latest by the end of March 2020 and carried out based on the newly adopted electoral Code of 28th January 2020. It is important to underline that the FKF Code is the sole binding document pertaining to the upcoming electoral process, together with the FKF Statutes in other words the FIFA Standard Electoral Code is of informative nature only”. (Emphasis ours).
128. To counter this stance by FIFA, the Cross-Petitioners have questioned the authority of the signatory to the letter and suggested that the signatory, who is identified as Veron Mosengo-Omba the Chief Member Associations Officer, had no authority to waive compliance with the FIFA Code.
129. The Tribunal’s approach to the resolution of this issue is to look at the context within which the dispute arises and to resolve the matter in a way which advances the progression of, not just the elections, but sporting activities in Kenya as to construe this issue otherwise would be inimical to the best interests of the footballing fraternity.
130. The undeniable fact is that the Cross-Petitioners have not offered more beyond the assertion that there has been no compliance with this rule and have not addressed the Tribunal as to the effect of such non-compliance. On the other hand, it is clear that the term of office of the present National Executive Committee has run its course and FIFA has effectively waived non-compliance with this provision in order to allow the elections to be held. If FIFA insisted on compliance with this provision, FKF would in the position where it could not hold its elections until at least July 2020. This would have the unintended consequence of extending the term of the present NEC or leave the federation without an elected body to ran its affairs until the elections.
131. The balance therefore tilts in favour of the finding that the non- compliance has no bearing on the validity of the Code in so far as the forthcoming elections are concerned.
132. The next challenge is to the membership of the electoral board. In its decision of 3rd December 2019, the Tribunal found that the electoral board was improperly constituted and required FKF to reconstitute it. Accordingly, at the SGM the following persons were confirmed as members of the electoral board: Kentice Tikolo as Chairperson, Patrick Onyango, Sam Karanja, Alfred Ndinya and Ali Kauleni. The following three names were also adopted as standby members of the Electoral Board: Rachel Muthoga, Elaine Mbugua and Andrew Mudibo
133. The FIFA Code provides as follows with respect to the electoral board or committee:
1. The electoral committee (hereafter the Committee) organizes and supervises the election process and takes all decisions relating to the election.
2. The members of the Committee must under no circumstances be members of the executive body
3. The members of the Committee shall be bona fide members of the association.
134. As we understand it, the challenge is that the persons elected to the committee are not bona fide members of the association.
135. Article 11 of the FKF Constitution 2017, which we have already set out, tells us who the members of FKF are. It is clear from this article that none of these are natural persons. Clearly therefore, there is some discordance between the provisions of the FIFA Code and the FIFA Statute as Article 19(2) of the FIFA Statute provides as follows:
A member association’s bodies shall be either elected or appointed in that association. A member association’s statutes shall provide for a democratic procedure that guarantees the complete independence of the election or appointment.
136. The Tribunal holds that the complete independence of the election cannot be guaranteed if the members of the electoral board are members of FKF. For this reason, we are unable to fault the composition of the electoral board, and we accordingly dismiss this challenge.
Appeals Board under the Code
137. The other challenge to the Code is that it is defective to the extent that it does not provide for an appeals board.
138. Section 7 of the Code provides that any appeals against any decision of the Board may be lodged only with the FKF Appeals Committee. The FKF Appeals Committee is established under Article 67 of the FKF Constitution 2017 as follows:
1. The function of the Appeals Committee shall be governed by the Disciplinary Code of FKF and the Code of Ethics of FKF. The Appeals Committee shall pass decisions only when at least three members are present. In certain cases, as specified in the relevant regulations, the chairman may rule alone;
2. The Appeals Committee is responsible for hearing appeals against all decisions determined by all committees;
3. Decisions pronounced by the Appeals Committee may be appealed to the Court of Arbitration for Sport (CAS) in Lausanne, Switzerland, or to a national, independent Arbitration Tribunal recognised by FKF, as specified in this Constitution.
139. The Tribunal agrees, on the face of it, that the functions of the Appeals Committee indicates quite clearly that it cannot be the body contemplated under the FIFA Code which provides as follows with respect to the appeals procedure;
1. The election appeal committee is constituted of three members and two substitutes elected by the general assembly at the same time as the members of the Committee. One of these members shall have legal training.
140. FKF has met this challenge by stating that the choice of the Appeals Committee established under Article 67 of the Constitution as the Appeals Board for purposes of the Code was made by members at the SGM and is an independent body comprising of the following: Ahmed Adan as Chairman with Janet Katisya, Sarah Ochwada, Carol Mutung’a Kariuki and Kenneth Wyne Mutuma as members.
141. The relevant question to ask therefore is whether the body established as an appeals committee for the purpose of the Code is independent notwithstanding that it is a creation of the FKF Constitution.
142. Article 64 of the FKF Constitution provides for the establishment of judicial bodies including the Appeals Committee. Article 64 (4) provides as follows with respect to members of the Judicial bodies;
The chairmen, the deputy chairmen and other members of the judicial bodies shall be elected by the General Assembly upon proposal of the National Executive Committee and shall not be members of the National Executive Committee, the Electoral Committee or of a standing committee or to any other body of FKF including the General Secretariat or act as a delegate of a Member at the General Assembly.
143. As stated in Runa Begum – v- Tower Hamlets LBC2, (2002) 2 All ER 668 at 682 para. 28 (quoted with approval by the Court of Appeal in Municipal Council of Nakuru v Reliable Concrete Works Limited (supra):
“In order to establish whether a tribunal can be considered independent, regard must be had to the manner of appointment of its members, their terms of office, existence of guarantees against outside pressure and whether the body presents an appearance of independence. As to the impartiality there
2 [2003] 2 WLR 388, [2003] 2 AC 430, [2003] UKHL 5, [2003] 1 All ER 731
are two aspects in these requirements. First, the tribunal must be subjectively free from personal prejudice and bias. Secondly, it must also be impartial from objective point of view that it must offer sufficient guarantee to exclude any legitimate doubt in this respect”.
144. It is clear to us from Article 64(4) of the FKF Constitution, and from our own knowledge of the members identified as constituting the Appeals Committee, that the coincidence between the Appeals Committee as established under the FKF Constitution and now serving as the Appeals Board under the Code does not of itself rob the Board of its independence and we are satisfied that the members of the Committee are sufficiently independent and qualified to serve as the Appeals Board contemplated under the Code.
Public Participation
145. The challengers have once again raised the issue of public participation which was ordered by the Tribunal in its decision in SDT Case No. 21 & 24 of 2019. The challengers say that the purported public participation undertaken by FKF was a sham and a window dressing exercise intended to give the process a veneer of constitutionality. To this end the challengers say that the public participation meetings called by FKF were in fact branch meetings at which only selected members were allowed to participate.
146. The challengers, and in particular the Cross-Petitioners rely on the decision in Law Society of Kenya v Attorney General & 2 Others [2019] eKLR where the Court of Appeal held that:
From the finding above, the learned judge ought to have found error in favour of the appellant based on the claim made on the lack of public participation. It was an error for the learned judge to require the appellant to prove the negative, for once it states that there was no public participation, the burden shifts to the respondents to show that there was such. Much weight has been placed on public participation because it is the only way to ensure that the Legislature will make laws that are beneficial to the mwananchi, not those that adversely affect them”
147. The replying affidavit of Barry Otieno meets this challenge by setting out extensively the steps undertaken to comply with the Tribunal’s orders in Appeals No. 21 & 24 of 2019 in so far as the achievement of public participation was concerned. FKF has also produced notices, minutes and participants’ attendance sheets to demonstrate that the exercise of engagement for the formulation of a new electoral Code was intensive, extensive and all inclusive. Indeed, FKF has gone on to demonstrate that a number of the persons now listed as challengers in fact attended the forums arranged by FKF and participated in the deliberations.
148. As we understand it, the Cross-Petitioners’ challenge is based on the fact that none of them, as aspirants, were notified or invited to participate in any of the stakeholder engagements and for that reason they do not accept that such engagements were legitimate or met the threshold for public participation as ordered by the Tribunal.
149. In the Tribunal’s view, whilst the responsibility to undertake public participation is primarily on FKF, aspirants such as the Cross-Petitioners cannot relegate themselves to a passive status and then be heard to complain that they were not invited. The Cross-Petitioners were parties to the proceedings before the Tribunal in No. 21 & 24 of 2019 and were well aware that the Tribunal had directed that public participation be undertaken. They therefore had a responsibility to engage actively with the FKF, even if only to enquire whether FKF had arranged any forums for public participation. Orders of decision-making bodies such as the Tribunal are not hidden traps for parties to hold on to and use further down the road to impeach or undermine the activities of opposing parties. The Tribunal was told that one of the Cross-Petitioners, Sam Nyamweya, was invited to participate in public participation vide an email date 18th December 2019, but did not deem it fit to attend the meeting held for the Nairobi West sub branch. The cross Petitioners have not demonstrated that they sought information from FKF or made inquiries on the steps put in place by FKF to comply with the orders of the Tribunal and it is disingenuous of them to allege now that there was no public participation.
150. We agree entirely with the views expressed in Republic v County Government of Kiambu Ex parte Robert Gakuru & another [2016] eKLR where the High Court addressed itself to the scale or standard to be used to determine the adequacy of public participation as follows:
“However, it must be appreciated that the yardstick for public participation is that a reasonable opportunity has been given to the members of the public and all interested parties to know about the issue and to have an adequate say. It cannot be expected of the legislature that a personal hearing will be given to every individual who claims to be affected by the laws or regulations that are being made. What is necessary is that the nature of concerns of different sectors of the parties should be communicated to the law maker and taken in formulating the final regulations. Accordingly, the law is that the forms of facilitating an appropriate degree of participation in the law-making process are indeed capable of infinite variation. What matters is that at the end of the day a reasonable opportunity is offered to members of the public and all interested parties to know about the issues and to have an adequate say. What amounts to a reasonable opportunity will depend on the circumstances of each case.”
151. Similarly, in Nairobi Metropolitan PSV Saccos Union Limited & 25 others v County of Nairobi Government & 3 others [2013] eKLR, the Court agreed that:
The forms of facilitating an appropriate degree of participation in the law-making process are indeed capable of infinite variation. What matters is that at the end of the day a reasonable opportunity is offered to members of the public and all interested parties to know about the issue and to have an adequate say. What amounts to a reasonable opportunity will depend on the circumstances of each case.”
152. The Tribunal is satisfied that FKF undertook active and genuine steps to comply with the orders of the Tribunal and that such public participation met the requisite threshold and this ground of challenge must therefore fail.
153. The status of FKF’s compliance with the Tribunal’s decisions in SDT Case No. 6, 9 & 19 of 2015.
154. In SDT Case No. 6, 9 & 19 of 2015, the Tribunal ordered, inter alia as follows:
Football Kenya Federation shall undertake all the necessary steps to ensure that its application for registration under the Sports Act, 2013 is pursued and the obligation to follow up on the registration process falls upon the Federation.
155. The question whether FKF has complied with these orders need not detain the Tribunal for too long.
156. The Registrar in her replying affidavit depones as follows at paragraphs 28, 29 and 30:
i. THAT on 29th July 2016, the Sports Registrar issued an Interim Certificate of Registration No. 75 to FKF with conditions after the Sports Dispute Tribunal directive that the same be issued to all sports organizations that were seeking registration before the Sports Registrar.
ii. THAT the Interim Certificate issued to FKF automatically became invalid on gazettement of the Sports Registrar’s Rules and Regulations of 2nd September 2016.
iii. THAT in view of the lapse of the Interim Certificate that FKF was issued with Certificate of Registration No. 45 of 24th May 2018 after submitting an amended constitution (FOOTBALL KENYA FEDERATION 2017) on 27th January 2018.
157. In terms of section 47(1) of the Act a national sports organization registered under the Act is to be issued with a certificate of registration in the prescribed form; and section 46(7) provides as follows:
A certificate of registration issued under this section—
(a) shall be conclusive evidence of authority to operate throughout the country as may be specified in the certificate of registration;
158. A certificate of registration having been issued, it becomes clear that FKF has indeed complied with the order of the Tribunal in SDT Case No. 6, 9 & 19 of 2015.
Eligibility for Candidature under the Electoral Code
159. Section 4 of the Code deals with elections and 4(2)(a) provides as follows:
1. Candidates for the office of President and Deputy President must meet the following requirements:
i. Each candidate shall have been active in football i.e. registered as an NEC member, committee member, referee, assistant referee, coach, trainer or as any other person responsible for Technical, medical, administrative matters in FKF, league or club or as a player for three of the last four years before being proposed as a candidate.
ii. Each candidate shall present declarations of support from at least five (5) of the seventy-eight (78) eligible voters as per article 21 of the 2012 FKF Constitution. No candidate shall present an endorsement from a club/member that has endorsed another candidate. Such an endorsement shall be deemed to be null and void. In the event of a dispute pertaining to double endorsements, the FKF General secretary being the custodian of the clubs and members’ registry, shall advise the board on which endorsement is valid.
160. The attack on these eligibility criteria is premised on the limitation that candidates for the office of president and deputy president should meet the qualifications set out at (i) and (ii) above. This impugned provision applies mutatis mutandis to the National Executive Committee (NEC) and the other elective positions.
161. It is not clear to the Tribunal why (ii) above refers to Article 21 of the 2012 FKF Constitution. Be that as it may, the Tribunal has also considered the amendments which the challengers say they had proposed with respect to the question of candidate eligibility, which amendments are as below:
1. Each candidate shall have been active in football (i.e. registered as a former President/Chairman, Former Vice President/Vice Chairman an NEC member, Former NEC member, Former Branch or Sub Branch Official Committee member, referee, assistant referee, coach, trainer or as any other person responsible for Technical, medical, administrative matters in FKF, league or club or as a player for three of the last four years before being proposed as a candidate.
2. Each candidate shall present declarations of support from of at least five not more than (5) of the seventy-eight (78) eligible voters as per article 21 of the 2012 FKF Constitution. Members Clubs of FKF eligible to vote form any of the Nine (9) Distinct Regions of FKF. No candidate shall present an endorsement from a club/member that has endorsed another candidate. Such an endorsement shall be deemed to be null and void. In the event of a dispute pertaining to double endorsements, the FKF General secretary being the custodian of the clubs and members’ registry, shall advise the board on which endorsement is valid.
162. The starting point for a consideration of this challenge must be Section 46(6) of the Act which provides that all National sports organisations registered under the Act shall be open to the public in their leadership, activities and membership.
163. The issue therefore is whether the candidate eligibility criteria set out in the Code is in consonance with the statutory edict. We bear in mind, once again, that Regulation 20 provides that elections shall be held in accordance with the constitution of the sports organization; further, that as provided at the Second Schedule to the Act, the matters provided for in the constitution of a sports organisation must comply both with the Constitution of Kenya and the Act.
164. We have given consideration to the FKF Constitution 2017 and in particular to the provisions of Article 43 which relates to candidates for the office of the president and provides as follows:
1. The President shall be elected by the General Assembly for a period of four years. His mandate shall begin after the end of the General Assembly which has elected him.
2. A President stays in office until a new President is elected.
3. A President may be re-elected for a further two (2) terms3 of office in accordance with Art. 37 (e).
4. Only members of FKF may propose candidates for the office of President. Members shall notify the general secretariat in writing of the name of a candidate for the President of FKF at least six weeks before the date of the General Assembly.
5. The general secretariat shall notify the members of the names of the proposed candidates at least one month before the date of the General Assembly.
165. It is clear from the provisions set out above that the eligibility criteria for candidature is not contemplated under the FKF Constitution 2017 and appears for the first time in the Electoral Code.
166. The Tribunal fully appreciates that there is an argument to be made for establishing eligibility criteria which requires that candidates for president and vice president as well as the NEC must show some nexus with or activity in football in order to demonstrate legitimacy to compete for these positions. However, as counsel Charles Ouma argued powerfully, there are numerous personalities who have a clear and well known involvement in football, including former players and former NEC members who may very well present an attractive candidature for the office of president, vice president or NEC but are locked out from being able to offer their candidature and to compete because of the criteria set out in the Code. If such policy and eligibility criteria had been set out in the FKF Constitution, then there might have been a justifiable basis for asserting, firstly that this is a constitutional requirement, and secondly that potential candidates for office should be deemed to have known about the criteria by dint of the fact that it is in the FKF Constitution which has been approved and ratified by the General Assembly of the Federation. The difficulty therefore is that this criterion appears for the first time in the Code which itself is published ideally only six (6) months before the election to which it applies. How then can a provision like this
3 This should be one (1) term in accordance with the Second Schedule to the Act; be legitimized when it appears in a Code which comes into force shortly before the election but 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. There are apparently numerous other positions in which there is no contest to the candidature of the incumbent.
167. Were Samwel & 14 Others v Attorney General & 2 others [2017] eKLR, involved a challenge by student leaders of various public universities to certain amendments of the Universities Act in particular Section 18 (1C), (1D), and (1E) which introduced changes to the manner of election of student leaders in the universities. In considering the issues raised by the student leaders, Justice Chacha Mwita agreed that any limitation of the fundamental rights under Article 38 (political rights) and Article 81 of the Constitution of Kenya (general principles for the electoral system) must be justified and necessary.
168. The Tribunal agrees that the eligibility criteria is a limitation of the challengers’ political rights as enshrined under Article 38 of the Constitution. No justification has been offered by FKF for the limitations introduced in the Code; and even if such limitation was justified, it would have had to be incorporated into the FKF Constitution 2017 and notified to the members and potential candidates within such period as would allow them to bring themselves within the eligibility criteria.
169. The fact that the Code has undergone public participation does not cure this defect because it is one that goes to the legitimacy of the criteria for eligibility and cannot be rectified by public acclaim.
170. Peter Solomon Gichira vs. Independent Electoral and Boundaries Commission & the Attorney General [2017] EKLR concerned a challenge to certain amendments to the Elections Act which limited his present the petitioner’s candidature for the office of President of the Republic of Kenya. It was contended that Section 29 of the Elections Act had been sneaked in by parliament and took away the rights guaranteed by the Constitution by limiting the political rights of independent candidates. In considering the matter, Justice G V Odunga stated as follows at para 67:
The issue of membership to political parties or lack of it is a new provision introduced vide the Elections Act, 2011. Considering the various Articles of the Constitution it is clear that section 29 of the Elections Act is a limitation of the rights enshrined in the said provisions of the Constitution. Once it is found that there is such a limitation Article 24(3) of the Constitution shifts the burden to the State to justify that limitation by demonstrating to the court, tribunal or other authority that the requirements of Article 24 have been satisfied. This was restated by Lenaola, J (as he then was) in Union of Civil Servants & 2 Others v Independent Electoral and Boundaries Commission (IEBC) & Another [2015] eKLR where the learned Judge held that:
“once a limitation of a fundamental right and freedom has been pleaded as has happened in the present Petition, (on grounds of equality and freedom from discrimination under Article 27 of the Constitution and political rights under Article 38 of the Constitution), then the party which would benefit from such a limitation must demonstrate a justification for the limitation. In demonstrating that the limitation is justifiable, such a party must demonstrate that the societal need for the limitation of the right outweighs the individual’s right to enjoy the right or freedom in question; See S vs Zuma & Others (1995)2 SA 642(CC).”
He continued as follows at para 68:
One condition that must be satisfied is that a provision enacted or amended on or after the effective date, is not valid unless the legislation specifically expresses the intention to limit that right or fundamental freedom, and the nature and extent of the limitation. A look at section 29 of the Act does not reveal an expression of an intention to limit this right. Nor does it indicate the nature and extent of the limitation.
171. The purpose of competitive elections is to offer voters a choice between different philosophies, manifestos and visions so that they can decide who their leaders will be for the term as defined in the constitution. When such choice is taken away from the voters, then it cannot be said that the ascendancy into office of the sole candidate who meets that criteria is legitimate. For this reason, the Tribunal has no hesitation in striking down the provisions of section 4 of the Code as being unreasonable and designed to lock out potential aspirants and is a gross violation of the principle of free and fair elections contemplated by Section 46 (6) of the Act as read with paragraph d of the Second Schedule to the Act and Article 81 of the Constitution of Kenya 2010.
172. Clearly, the eligibility criteria set out in the Electoral Code finds no support in either the Constitution of Kenya, the Sports Act or the FKF Constitution 2017 and is accordingly null and void.
Way Forward
173. The Tribunal, after careful consideration 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. The Tribunal has also considered very carefully and dismissed the majority of the challenges set out in the Cross-Petition in No. 3 of 2020 and the Petition in No. 5 of 2020. 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. For this reason, it is clear that the scheduled elections cannot proceed.
174. Having come to this conclusion, the Tribunal is faced with the question as to how it should proceed in light of the urgent need to hold elections and ensure that there is a proper transition to an elected office that meets the aspirations of the football fraternity. The Tribunal is cognizant that this is the second time it will have been constrained to impeach the mechanisms put in place by FKF for the holding of elections. Three (3) options therefore present themselves as possibilities for the way forward.
175. The first is to give the FKF another opportunity to put in place structures that will meet the requirements of Articles 38 and 81 of the Constitution of Kenya 2010, the Sports Act and the Regulations. This will necessarily entail extending the term of the present NEC further beyond the limit of four (4) years which we are told expired on 26th January 2020. In its decision in No 21& 24 of 2019, the Tribunal had ordered that the NEC remain in office until the next election. This was obviously in anticipation of the fact that FKF would put in place structures that would result in the holding of free and fair elections as contemplated by Article 81 of the Constitution. As the present NEC has failed to facilitate this, the Tribunal does not see how allowing it to continue to be in charge of the roadmap to these elections could possibly instil confidence in stakeholders and potential aspirants. The lack of confidence is evidenced by the continuing challenge to the structures put in place by FKF for the elections. It is clear therefore that allowing the present NEC to continue in office does not commend itself to the Tribunal.
176. The second option was proposed by the Registrar and the challengers and involves the intervention by the Cabinet Secretary in terms of Section 54 of the Act which provides as follows:
1. Where a sports organisation fails to comply with the recommendations of an inspection, the Cabinet Secretary may—
a. appoint any person or committee to assume the management, control and conduct of the affairs of a sports organization, to exercise the powers and functions of the sports organization to the exclusion of its officials, including the use of its corporate seal, where the sports organization concerned has been unable to conduct its affairs in a proper manner;
b. or remove any official of a sports organization who, in the opinion of the Cabinet Secretary, has caused or contributed to any contravention of any provision of this Act, or any regulations or directions made thereunder or to any deterioration in the financial stability of the sports organization or has conducted himself in a manner which is detrimental to the interest of the relevant sporting discipline, or which has brought the sporting discipline into disrepute.
2. The appointment of a person or committee under this section shall be for such period as the Cabinet Secretary shall specify in the instrument of appointment, but shall not exceed six months.
3. A person or committee shall, upon assuming the management, control and conduct of the affairs of a sports organization, discharge his or its duties with diligence and in accordance with sound management and financial principles.
177. This proposition, while attractive at first glance, is clearly unattainable for the reason that it arises from the right of the Cabinet Secretary to require an inspection of the sports organization to be undertaken in terms of Sections 52 and 53 of the Act. This proposition therefore has no statutory foundation having regard to the matters discussed by the Tribunal arising from the grievances expressed by the Cross-Petitioners and the Petitioners in No 5 of 2020 and the Interested Parties. Of greater significance, however, is FIFA’s stated unequivocal principle of non- interference by national governments in the management and organization of matters concerning the administration of national federations such as FKF. This principle is imbedded in the FKF Constitution 2017 at Article 18 (1) And Article 15 (c) of the FIFA Statutes. It is therefore clear that this route is not open to the Tribunal.
178. The third option presented to the Tribunal is to request FIFA to appoint a normalization committee in terms of Articles 8 and 14 of the FIFA Statutes. This is the route that best commends itself to the Tribunal and accordingly this decision will be transmitted to FIFA with the request that it appoints a normalization committee of the Football Kenya Federation, whose mandate would include to run the daily affairs of FKF, to review the FKF Constitution 2017 and to organize 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.
179. For the avoidance of doubt, 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.
180. The Tribunal will accordingly mention the matter in thirty (30) days to establish the response from FIFA and to issue appropriate directions on the way forward.
181. For the avoidance of doubt, the term of office of the present FKF NEC is now at an end.
Summary
182. To summarize therefore, the Tribunal has come to the following conclusions and accordingly orders directs as follows:
I. A declaration be and is hereby issued that the decisions by the Sports Registrar in her letters to FKF dated 25th October 2019 and 15th November 2019 directing FKF to register county sports associations and to call off elections are without lawful basis;
II. A declaration be and is hereby issued that a branch of a national sports organization is not synonymous with a county sports association and consequently, a national sports organization has no obligation in law to register county sports associations but can create and maintain branches as an organizational unit as it may from time to time deem fit and as provided for in law;
III. A declaration that all the football clubs duly registered by FKF are eligible to participate in FKF elections at their respective levels of competition within FKF’s organizational structure be it at the National or sub-county levels and more particularly as provided for in the Constitution of Kenya 2010, the Sports Act, 2013, 2017 FKF Constitution and the FKF Electoral Code;
IV. A declaration that the notice convening the SGM of 28th January 2020 was compliant with the FKF Constitution 2017 and the Special General Meeting was accordingly properly convened and constituted;
V. A declaration that FKF has complied with the orders of Sports Disputes Tribunal in SDT No. 6,9 and 19 of 2015;
VI. A declaration that the public participation on the 2020 FKF Electoral Code did meet the constitutional threshold;
VII. A declaration that the Appeals Board proposed in the FKF Electoral Code meets the threshold of independence and impartiality contemplated in Article 47 and 81 of the Constitution of Kenya 2010, FIFA Statutes, the FKF Constitution 2017 and FIFA Standard Electoral Code;
VIII. A declaration that the eligibility criteria at Section 4 of the 2020 Electoral Code are unreasonable and designed to lock out potential aspirants and is therefore a gross violation of the principle of free and fair elections contemplated by Section 46 (6) as read with Paragraph (d) of the Second Schedule to the Sports Act and Article 81 of the Constitution of Kenya 2010;
IX. Therefore, an order be and is issued declaring the intended elections and the process towards these elections unlawful for non-compliance with Article 38 and 81 of the Constitution of Kenya;
X. A declaration that the term of office of the NEC is at an end;
XI. A request that FIFA appoints a normalization committee for the purpose of inter alia, holding the elections of the FKF;
XII. A declaration 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;
XIII. The matter shall be mentioned on 21st April, 2020 for further directions;
183. The Tribunal commends the Advocates for the respective parties as well as the parties who appeared in person for their interesting and engaging submissions in support of their respective cases and the cordial and sporting manner in which the matter was contested.
184. We must add as a post script, that the Tribunal’s conclusion on the fate of the FKF elections and the fear expressed by Mr. Nick Mwendwa as to the possibility of a decision interfering with the elections attracting a possible ban by FIFA has been somewhat mitigated by the coronavirus and its effect and impact on sporting activities globally. Hopefully, the football community can use this COVID-19 imposed hiatus to rectify the defects that the Tribunal has identified in the electoral process and to close ranks so that Kenya can emerge from this period of isolation as a stronger footballing nation with better governance structures and leaders who are accepted as legitimate by the entire football family.
Dated and delivered at Nairobi this __17th day of March, 2020
John M. Ohaga, C.Arb; FCIArb Chairperson
Ms. Mary N. Kimani, Member
J Njeri Onyango (Mrs), MCIArb; Member