The Sports Disputes Tribunal will, tomorrow afternoon, hold what its chair – John Morris Ohaga – has described as a “marathon” as it hears matters seeking to stop the planned Football Kenya Federation elections, scheduled to kick off at the county level on Saturday.
During the same session, the tribunal is also set to deliver its verdict on Petition 7 of 2020, where Kenya Premier League Limited had sought to undo the decision by outgoing FKF president Nick Mwendwa to unilaterally end the 2019/20 season and declare Gor Mahia the champions.
In Petition 10 of 2020, 10 petitioners, comprising aspirants for different national positions and two football clubs want the entire electoral process for being in violation of the applicable laws, against the SDT ruling of 17th March 2020 and being exclusionary and discriminatory.
However, Lordvick Omondi Aduda has since withdrawn as a petitioner in the case and enjoined himself as an Interested Party in support of the elections.
The second matter that will be heard is on preliminary objections to petition 11 of 2020 filed by journalist Milton Nyakundi, who has thrown the spanner into the works by adding world-governing body – FIFA and its Chief Member Associations Officer, Veron Mosengo Omba, in his pursuit of orders that directives from Zurich that contravene Kenyan law would be null and void.
The two petitions are challenging the authority of the FKF Electoral Board to make changes to the Electoral Code and the legality of the regulations issued by the Kentice Tikolo-led board on 11th August.
They also want the voters register cleaned up and the criterion of how the delegates are to be determined.
List of clubs
Nyakundi’s petition has drawn the Sports Registrar as an interested party, arguing that the legal status of the counties and the voting clubs can only be ascertained by Rose Wasike for the reason that she is the custodian of the register of sports organizations in the country.
“The purported voters register has been prepared in total disregard of the requirements of the Sports Act 2013 as to the legal status of the football clubs, which status is supposed to be in the custody of the Interested Party herein,” argues Nyakundi in his application.
“The Respondents, in publishing the register, have not demonstrated that the list of clubs is derived from the register being kept by the Interested Party herein in accordance with Articles 46 and 47 of the Sports Act 2013.”
Further, Nyakundi wants FIFA stopped from interfering with the FKF elections, saying the directives by Mosengo-Omba amount to a violation of the FIFA Statutes.
“The letter signed by the 5th Respondent, dated 5th August 2020, to the effect that the Code found to be in violation of the Constitution of Kenya 2010 will be applied to the 3rd Respondent’s elections gives a misguided assumption that the 4th Respondent possesses extraordinary power to control the affairs of the 3rd Respondent, including authority to decide on the electoral processes and even set aside the applicability of the provisions of the very legislation that incorporates the 3rd Respondent within the territory of its jurisdiction,” he argues in his submissions.
FKF and its Electoral Board’s preliminary objections are on three main limbs – that Nyakundi lacks the locus standi to bring the petition before the SDT for him not having legitimate or any other interest in the FKF elections or its outcome, the matter being Res Judicata (already heard and determined) for raising issues that were heard and determined in SDT 3 (consolidated with SDT 5) of 2020 and the tribunal lacking jurisdiction to hear the petitioned as framed, especially where FIFA is listed as a respondent.
They further argue that the court does not have the first-instance jurisdiction on FKF election disputes.
“From the foregoing, Mr Nyakundi has not established a sufficient interest in the intended FKF elections to allow the application herein and the same renders him a mere busy-body or a meddlesome interloper, even where the rules of locus standi have been relaxed to accommodate any person,” argue FKF in their written submissions.
“We submit that he has no interest in matters football elections as interest in football matters are limited to registered members of FKF or members of FKF within the definition in Article 11(1) of the FKF Constitution, current or former officials or to persons who have declared aspirations to run for FKF elective post at whatever level.”
On jurisdiction over matters involving FIFA, they argue that: “The SDT also lacks jurisdiction to hear matters relating to FIFA or more particularly the SDT cannot hear a case where a party has sued FIFA. Neither Section 58 nor 59 of the Sports Act gives the SDT the jurisdiction to hear matters against FIFA.
“It is trite that a Court’s Jurisdiction flows from either the Constitution or Legislation or both. Therefore, a Court cannot arrogate to itself Jurisdiction exceeding that which is conferred upon it by Law. Any assumption of jurisdiction over FIFA will be unlawful and illegal.”
Strict points of law
In his response to the objections, Nyakundi maintains the Respondents have fallen short of the required threshold that a PO must strictly be on points of law.
“The purported preliminary objection(s) is (are) blurred with factual details liable to be contested and, in any event, to be proved through the process of evidence. The 3rd Respondents’ assertions bear factual aspects calling for proof; which therefore necessitates the need to adduce evidence for authentication.”
Through Nelson Odongo of Kerandi Manduku Advocates, the aspirants and the two clubs – Bondeni and Cheptiret – further argue that the board did not only act outside of its powers but also undermined the constitutional requirement for public participation.
“The guidelines and regulations were formulated without the input of football stakeholders, taking into account that there is currently no National Executive Committee and that it is not possible to call a general meeting, it was legitimately expected that there would have been stakeholder involvement in the formulation of the guidelines and regulations, this has resulted into the formulation of guidelines and regulations which are restrictive, unreasonable and unconstitutional,” they argue in their court documents.
They have relied on the finding of the Supreme Court in Petition No. 1 of 2017 – Raila Odinga & Another – vs – IEBC & 2 others, where the judges ruled that “elections are not events but processes”.
“In so doing, the apex court held that the legitimacy and fairness of an election is not entirely based on the happenings on the Election Day but the events and activities leading to an election determine the legitimacy of the said election.
“We humbly wish to submit that taking into consideration the issues that we have submitted on and the issues outlined in this instant petition combined with the leaked WhatsApp audio of Nick Mwendwa addressing his “team blue “members, it is quite evident that the electoral board has been compromised and that it is being used as a tool to ensure that the incumbent president and his team remain in office.
“It for this reason that the Petitioners herein alongside other football stakeholders have lost faith in the ability of the 1st Respondent under the guidance of the 2nd Respondent to conduct free and fair elections.”
In their defense, the board – through an affidavit sworn by its chair Kentice Tikolo, has maintained that the process is legal by virtue of the FIFA letter dated 5th August 2020 which was sent to FKF CEO Barry Otieno and signed by Veron Mosengo-Omba – the Chief Associations Officer of the Zurich-based global football governing body.
“That I am aware that in SDT 3 & 5 of 2020, this tribunal requested FIFA to consider the possibility of setting up a normalization committee pending the resolution of the FKF elections and having considered all factors, FIFA advised the FKF on 5th of August to conduct fresh elections as soon as the public health situation in the country permits but with a strict injunction that such elections must be conducted wholly,” she avers in her affidavit, dated 10th September 2020.
“I reiterate that the electoral board is an independent board that is conscious of its mandate in law and which is committed to discharge to the applicable standard and deliver an electoral process that is reflective of the will of the football fraternity.
“The Petition herein is a speculative attempt to stop the elections using generalized allegations, baseless innuendos, idle stereotypes and wild claims based on interpretations of law that are an aberration from settled from principles of electoral justice and law.”
Authority to exercise powers
The ruling by the tribunal of 1 March 2020 may be the clearest indication of how the KPL matter may ultimately be determined. In the ruling, SDT found that Mwendwa had no authority to exercise powers vested in other bodies of the FKF, including the National Executive Committee and the General Assembly.
“We note that the construction of the FKF Constitution does not provide for the President to solely undertake meetings through his own motion and the same must be either through General or Special Meetings or those spearheaded by committees in undertaking their designated tasks under the Constitution and the same is subject to the requisite constituent members. This therefore requires a NEC to be in place,” ruled the tribunal.
“The President therefore is bound by the FKF Constitution and therefore can only operate in the interests of FKF within the limits of the office considering the assumed status pertained in Art. 43 (2). Being the existing member of NEC still sitting at their appointed seat, the President’s powers are limited to the extent of those activities that the office can undertake as FKF.
“In conjunction with the office of the General Secretary as highlighted in Articles 62 and 63, the Respondents cannot subvert the directions of the Tribunal or the FKF Constitution which requires certain thresholds as to membership of the Bodies of FKF to be met in order for proper management and administration and decision making of FKF to ensue.”