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FKF’s new constitution draft faces legal challenge

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FKF boss Nick Mwendwa addresses the press during a media briefing on September 25, 2017. PHOTO/Raymond Makhaya

NAIROBI, Kenya, Nov 9- Football Kenya Federation (FKF) will hold its Annual General Meeting (AGM) November 18 in Mombasa, where among other items to be discussed include the adoption of its new proposed constitution.

However, even as FKF prepares to usher in a new set of laws, its adoption faces a mountainous legal backlash especially on its clause to increase office tenures of officials to three terms of four years each.

This, according to stakeholders and various dissenting voices will be a contravention of the Sports Act of 2013 which stipulates that all office bearers in sports federations should hold office for a maximum of two terms, each running four years.

Article 20, Clause six of the Sports Act of 2013 states that;

“The newly elected office bearers shall hold office for a period of four years and may be elected for one further term.”

However, in its new draft, FKF seem to contravene the same. Article 36 (e) of the new proposed law states;

“The term of office of the President and the National Executive Committee members is for four years. They may be re-elected for a further two (2) terms of office provided that a member contesting for any position other than the one previously held, shall be eligible to contest for that position as it shall count as a new term of office in its own right.”

Ababu Namwamba was a former Cabinet Secretary for Sports. Photo/COURTESY

This, according to legal minds will be a contravention of the Sports Act, put in place to help govern sports institutions.

“The term limit clauses were not an idle addition to the Sports Act. They are a core component of the Act and they were intended to get rid of what has been referred to as ‘Life presidents,” Former Sports Cabinet Secretary Ababu Namwamba who was at the helm of the ministry during the implementation of the Act said, exclusively speaking to Capital Sport.

“Operationally, what FKF is proposing will be untenable because you can’t run contrary to the Law. They (FKF) are engaging in an illegality,” Namwamba added.

FKF president Nick Mwendwa, speaking on Wednesday afternoon however remains confident the draft will pass all legal hurdles with most members, according to him already satisfied with it.

“There was no term limit before in the past constitution. We are introducing a term limit not just for the president but all officials. This document was adopted by NEC, we had a consultative meeting with our members and went through this document and no one raised an issue. I am confident it will be adopted once we go to the AGM,” Mwendwa confidently states.

However, renowned Sports Lawyer Elvis Majani speaking to Capital Sport has said if passed, the document will be illegal and might not be adopted by the Registrar of Sports.

“By the time the current office was campaigning and coming into office, the Sports Act was already in motion. In law, it is assumed that you know about it. I am very certain that any stakeholder will easily challenge the legality of this document at the tribunal and win,” Majani said.

FKF President Nick Mwendwa (right) and his deputy Dorius Petra (left).Photo/COURTESY

His sentiments are shared by Namwamba who added that it will be rampantly illegal if the document is adopted in its current form.

“I signed a Gazette Notice while I was the CS instructing all the federations to amend their constitutions and align it with the Sports Act. Unfortunately, the person who took over at the Ministry did not follow up on this. We put up these laws to help manage sports which has been on a downward spiral,” the former Cabinet Secretary and Budalangi Member of Parliament said.

“The Sports Act is a fantastic thing if fully implemented. It will give Kenyan sports a platform to bounce into new leaps. We are hugely regressing in football and our athletics is not doing that good,” he added.

The former CS, also a seasoned Lawyer goes on to state that in the event the new rule book is passed at the AGM and someone moves on to challenge it in court, then they will have a watertight case.

“We are ready to go to either the High Court of tribunal if need be because this can simply not happen,” Majani added on.

The law also does not prevent someone from running in a different capacity. For example, a branch head can go on and run for a bigger post like a National Executive Committee member even after concluding his 12 years at the previous post.

Football Kenya Federation staff following the proceedings during the press briefing on Monday, January 9, 2016.PHOTO/Raymond Makhaya

This, according to stakeholders might create a dynasty.

Already, there is a concern over attendance at the AGM, November 18 being the final day of the Kenyan Premier League where most chairmen might be pre-occupied with their clubs. However, Mwendwa notes that will not be an issue as the chairmen are allowed to send proxies.

In the new Constitution, FKF also seeks to increase the number of AGM members from the current 78 to 94. FKF is proposing to turn all the 47 counties into branches while Nairobi will be split into two. Thus, FKF will have 48 branches.

This, Mwendwa says will be in the spirit of inclusivity with the National Executive Committee (NEC) also set to be expanded to incorporated two co-opted members and a women’s representative.

All the 290 constituencies will now turn into as sub-branches according to the draft.

The 94 members of the AGM will include all the 48 branches, 18 teams from the KPL, 10 each from the National Super League and Division One, three from the Women Premier League, two from the Women’s Division One League and one each from the referee’s coaches and players’ unions.

Also set to be introduced in the new law is the scraping of the Vice President’s post as an elective seat. Instead, a presidential aspirant will be required to have a running mate who will automatically assume the seat of vice president if his or her candidate wins.

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