OPINION & ANALYSIS: Why Amina should give Fifa and Mwendwa the finger

OPINION & ANALYSIS: Why Amina should give Fifa and Mwendwa the finger

Amina Mohammed, the Kenyan Sports Cabinet Secretary, has found herself in a prickly situation where it calls for true character and leadership.

This follows an unpopular pronouncement by world football governing body, Fifa, that could simply be interpreted as an abuse of the Kenyan constitution.

The CS has to choose between defending the law of the land or bowing to the pressure of Fifa. 

Kenya is in a catch-22 after Fifa, knowingly or unknowingly, invited the government into what could be a lengthy battle for football leadership in the country.

This back and forth and the imminent battle ahead could have been avoided had Nick Mwendwa, the FKF boss, not introduced stringent regulations that barred several candidates for participating in the FKF national elections, through a process that was perceived by his opponents to have been designed to favour the incumbent ahead of the December 7, 2019 polls.

This allowed his opponents, led by former football boss Sam Nyamweya, to move to the Sports Disputes Tribunal (SDT), a constitutionally established local sports arbitration body, to challenge the code.  

The SDT would then call off the first elections with the court citing lack of participation before ordering fresh polls before the term of the Mwendwa team expires. 

Fifa, in a letter to FKF, had warned that the term of the current office was set to end on February 10. The Zurich-based body would then give directions that new polls be held not later than March 30.

But then, there was another problem. Sports Registrar, the body mandated with registering all sports associations in the country, in line with the Sports Act 2013, had threatened that the polls will not take place unless FKF complied with the law of the land. 

Mwendwa then rushed back to SDT seeking orders from the Sports Disputes Tribunal to compel the Sports Registrar to allow the exercise to proceed. 

Once again, Nyamweya’s party took advantage of Mwendwa’s decision and asked to be enjoined in the case.

All the prayers submitted by FKF were granted but the court, headed by John Ohaga, a former rugby player and a lawyer who is qualified to sit as a Judge of the High Court in Kenya, found out that the federation had violated the eligibility rule in a second ruling delivered on March 17. In the same ruling, SDT kicked all the other NEC members, except Mwendwa, out of the office with Ohaga pronouncing that their term in office had expired on February 10.

This then forced SDT to request Fifa to form a Normalization Committee to oversee the exercise.

But in a surprise twist, Fifa, through a letter signed by Veron MosengoOmba reinstated the NEC, with the Congolese who is Fifa’s Chief Members Association officer stating that they do not recognize the SDT ruling.

MosengoOmba, in his letter, said that SDT is not a national sports arbitration body and thus its pronouncement cannot be adhered by the international body, citing secular 1010 of 2005 spelling what constitutes an ‘arbitration’ body.

“We would like to highlight that FKF statutes do not expressly recognize the jurisdiction of SDT as being the ultimate arbitration forum at the national level.

“Moreover, we note that the SDT is not the national arbitration tribunal in the sense of Fifa secular 1010 dated December 2005,” MosengoOmba stated in the letter that technically invited the government to directly get involved in the electoral process.

The circular that MosengoOmba cited reads in part: “Fifa is frequently asked by its members which criteria must be fulfilled for an arbitration tribunal to be classed as independent and duly constituted under the terms of article 60, paragraph 3 (c) of the Fifa Statute.

“The term “independent” and “duly constituted” requires that an arbitration tribunal meets the minimum (international) procedural standards as laid down in several laws and rules of procedure for the arbitration process.”

Some of these standards, according to Fifa, include: the principle of parity when constituting the tribunal, right to an independent and impartial Tribunal, principles of fair hearing, right to continuous proceeding and principle of equal treatment.

What MosengoOmba failed to understand, though, is that SDT is not a mere tribunal but rather a constitutionally established sports arbitration court established under the Sports Act of 2013. 

But this blatant ignorance by Fifa on the Kenyan laws might open a battle between the government and Gianni Infantino-led Fifa, combat that might consume MosengoOmba or, should Fifa stick with their own, see Kenya slapped with a serious sanction. 

Amina has since called on Fifa to respect the Kenyan constitution even as she prepares to meet the organization over the same.

Amina has two options: One, to side with Fifa and trash the ruling by SDT. 

The second option is to backto the body formed following the enactment of the Sports Act in 2013 and is in charge of arbitrating all local sports disputes. 

Siding with Fifa would mean that Amina will be in serious violation of the constitution that establishes the SDT. 

This would technically mean that even the Kenyan government doesn’t trust the very mechanisms that they themselves created and it might set bad precedent as other federations that have gone through the same process might turn around and disown the previous rulings. 

On the other hand, failing to abide by the directive might see the CS evoke chapter 54 of the Sports Act and form a committee or kick out the management of Mwendwa from office. 

This, however, will be interpreted as government interference and will attract severe sanctions from Zurich including but not limited to a ban.

Even though Fifa turned down the request by SDT to form a normalization Amina can still evoke Section 54 of the Sports Act, that gives the CS has powers to: “Appoint any person or committee to assume the management, control and conduct of the affairs of a sports organisation.”

The committee has the power 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;

According to the Sports Act, the CS also has the power to: “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 which has brought the sporting discipline into disrepute.”

But this too, will be seen as government interference whose effect will be a sanction.

It remains to be seen whether Amina will blink and allow Fifa to have their way and break the Kenyan constitution during an April 6 meeting with the international football regulators, FKF and SDT representatives

I say the soft-spoken CS should stamp her authority and protect the sovereignty of the Republic of Kenya even in the face of an imminent Fifa ban.