FIFA must now end Nick Mwendwa error and appoint Normalization Committee for Kenya

I believe that the indicted members of the NEC, having undermined national laws have invited FIFA to invoke Article 11(3) of the FIFA Statute
FIFA must now end Nick Mwendwa error and appoint Normalization Committee for Kenya
FIFA house in Zurich./Photo Courtesy

In this open letter to Mr Gelson Fernandes – FIFA Head of Member Associations for Africa – I am pleased to have the opportunity to address the football family and share my thoughts on the situation of Kenyan football, for the umpteenth time.

It is such a tremendous honor and a great sense of patriotic duty for me to write on this, ostensibly to clarify certain facts pertinent to FIFA taking a decision on the next course of action to stabilize Kenyan football. I write to you in my capacity as a journalist of good standing and a stakeholder of Kenyan football, who has been involved in long-running litigation before tribunals and courts of justice in my beloved country. 

This is, for me, a patriotic duty and a constitutional obligation which I take very seriously.

Please note that, as a defender of public interest on the governance of Football Kenya Federation, I have been involved in several matters relating to football, including several matters before the Sports Disputes Tribunal and the court cases currently ongoing in the High Court.

From the outset, I wish to state that the Kenyan football fraternity is well aware that the term of office of the officials under the leadership of Nick Mwendwa expired last month yet there’s no prospect of elections taking place any time soon. 

Indeed, the prevailing situation is a recipe for confusion that has left many stakeholders gaping for their breath awaiting FIFA’s position on the fate of elections that have now been thrown into jeopardy after the court’s decision to stop the Annual General Meeting that had been scheduled for last Saturday.

For the record, I am the Applicant inSports Disputes Tribunal – SDT/SC/E006/2021 – that determined that Nick Mwendwa and his National Executive Committee had no capacity to continue acting as officials of the federation. This suit is also the subject of contempt proceedings.

Contrary to rhetoric out there, the Judicial Review Application (Mombasa JR/E001/2024) which has led to the injunction that stopped the AGM was filed by Mr. Gabriel Mghendi – the NEC Member for Coast Region on, I believe, the instructions of Mr. Mwendwa after a similar one had failed to obtain similar orders at the High Court in Kiambu JR/E003/2024. NEC Member for Central Region, Davis Chege had moved the court.

From the foregoing, it is clear that it is the same individuals now crying foul that the courts are frustrating them who moved the courts or acted in a manner that left the football fraternity with no option but to respond to what they had filed in court. I happen to be that person they sued and in response I filed an application that obtained the orders that have led us to where we are. In other words, some, if not all, of the decisions that have led to the stalemate in the administration of the federation have been filed by Mr. Mwendwa himself or his NEC members. 

Accordingly, I submit that the said members of the NEC, whether acting on their own or the corporate interest of the FKF, have violated Article 58 (2) on the obligations relating to dispute resolution, which states as follows: 

“2. Recourse to ordinary courts of law is prohibited unless specifically provided for in the FIFA regulations. Recourse to ordinary courts of law for all types of provisional measures is also prohibited.”

Further, it is my submission that the failure to comply with applicable national laws, to wit the Sports Act 2013 and the Sports Registrar’s Rules & Regulations, leading to sanctions by government officials and other agencies of state. 

The failure to uphold national laws of Kenya have led to actions by the Sports Registrar of the Republic of Kenya and the Cabinet Secretary in charge of Sports, who in November 2021, invoked Section 54(2) of the Sports Act 2013 to remove the NEC from office via Gazette Notice; which I believe FIFA is seized of and well versed in. I believe that the indicted members of the NEC, having undermined national laws have invited FIFA to invoke Article 11 (3) of the FIFA Statutes which provide that:

“3. Violations of par. 1 i) may also lead to sanctions, even if the third-party influence was not the fault of the member association concerned. Each member association is responsible towards FIFA for any and all acts of the members of their bodies caused by the gross negligence or wilful misconduct of such members.”

It is my position that FKF derives its membership under Article 11 (1) of the FIFA Statutes which requires that “any association which is responsible for organizing and supervising football in all of its forms in its country may become a member association.” The second part of this provision stating that “consequently, it is recommended that all member associations involve all relevant stakeholders in football in their own structure” means that FKF is under obligation to comply with Kenyan laws if it is to maintain its status and therefore their indictment on the basis of non-compliance to the Sports Act 2013 and the Sports Registrar’s Rules & Regulations 2016 is sufficient grounds for FIFA to invoke Article 8 (2) of its Statutes.

Article 8 (2) provides as follows that “executive bodies of member associations may under exceptional circumstances be removed from office by the Council in consultation with the relevant confederation and replaced by a normalization committee for a specific period of time.”

By invoking Article 8 (2), FIFA would be acting in compliance with Article 5 of its Statutes which provide for “promoting friendly relations”, specifically 5 (2) which provides that “FIFA shall provide the necessary institutional means to resolve any dispute that may arise between or among member associations, confederations, clubs, officials and players.”

The appointment of the Normalisation Committee of Football Kenya Federation, pursuant to Article 8 (2) is the most ideal solution that complies with the principle enshrined in Article 5 (2) of the FIFA Statutes to provide the “necessary institutional means” to resolve the present crisis. I believe the circumstances currently obtaining in Kenya are extraordinary enough and meet the “exceptional circumstances” standard required under the former provision for the FKF NEC to “be removed from office by the Council in consultation with the relevant confederation and replaced by a normalization committee for a specific period of time.”

My firm belief is anchored on the following specific reasons. One is that, for argument’s sake, the term of office of the indicted officials expired in February 2024 before enactment of the Electoral Code and appointment of an independent Elections Board as required by the FIFA Statutes and the FIFA Standard Electoral Code. 

Secondly, following their removal from office by operation of Kenyan law and the  ‘expiry’ of the term of office before putting in place the required institutional and regulatory framework for the conduct of elections means there exists a vacuum that can only be filled by a Normalisation Committee to put in place an acceptable electoral process that would guarantee a free, fair, credible and verifiable elections that is compliant with the Constitution of Kenya, the Sports Act 2013, the FIFA Statutes, the FIFA Standard Electoral Code and other applicable legal instruments.

It goes without saying that the indicted officials have violated FIFA Statutes and Kenyan laws and are therefore guilty of gross misconduct and, consequently, lacking any capacity whatsoever to conduct the affairs of the federation.

I have put out these recommendations which represent the position of the majority of the stakeholders of Kenyan football, including, I dare say, the government of the Republic of Kenya. 

Time has come for Kenyans to be shown some respect and have the cartels pushed out to where they belong – jail. They have milked Kenya’s football coffers dry and want to hold millions of the country’s passionate football supporters hostage in self-preservation schemes that have no place in the modern-day era of development.

Heed the call, smell the coffee and appoint a that Normalization Committee now because everything is ripe for that provision of the Statute to be invoked but if you continue being in bed with the Mwendwa cohort of mercenaries, then Kenyans have demonstrated how ruthless they can be when their patience is stretched.

Grant them their ‘Barnabas’ because this Jesus you are prescribing for them in the name of ‘Saint Mwendwa’ is a wolf in sheep skin that they know too well and they will do everything to exorcize sooner rather than later.

I come in peace and I hope you will take this seriously while the tranquil lasts because the turmoil ahead may claim more casualties than you may see at this point in time.

Milton Nyakundi is a Kenyan journalist and commentator on public affairs that has been advocating for better governance at Football Kenya Federation (milton.nyakundi@gmail.com)

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