If it looks like a duck, swims like a duck, and quacks like a duck, then it probably is a duck. Picture this.
At one end of the spectrum, Football Kenya Federation breaks all the rules in the book, a project worth KSh215 million to procure an Outside Broadcasting van sees KSh123,175,693 (as recorded in FKF’s 2018 Financial Statement) paid to a UK-based company WTS Media Group Limited, which has since collapsed.
The FKF money is the listed as unsecured —meaning the only hope of recovering the cash is after a tedious legal process.
Even if FKF wins the case, it will only share with the rest of the unsecured creditors whatever is left of WTS Media Group, which could be as low as £19 (KSh1,980) from its bank balances.
At the other end of the spectrum is a FIFA official, Veron Mosengo-Omba, affirming FKF president Nick Mwendwa remains in office despite the Sports Tribunal declaring his term over.
Trinidad & Tobago situation
Curiously, Mosengo-Omba’s name features in Trinidad & Tobago where FIFA has imposed a normalization committee out of the blue, kicking out newly elected TTFA officials four months into their term of office.
According to investigative reporter Philippe Auclair writing for www.josimarfootball.com, the new office had flagged some impropriety in the use of some $2.5 million (about 19 million T&T dollars) of FIFA Forward Funds to build Trinidad’s Home of Football according to TTFA Board member Keith Look Loy.
Of these TT$19 million, the previous office could only provide contracts for TT$3.5million. The rest, they told Loy, the work had been paid on a cash basis.
www.josimarfootball.com quotes Loy saying the imposition of a normalisation committee came from Fifa’s Secretary General Fatma Samoura. But Véron himself wrote a letter to Tyril Patrick, the Finance Manager of the TTFA, appointing him caretaker manager of TTFA.
“Now this Finance Manager had been John-Williams’ (previous TTFA boss and a close ally of Gianni Infantino) right-hand man, complicit with the previous administration, whom we’d kept on because we needed to find out what was the situation in the finances, which none of us knew, to shine some light on this. And Véron chose him.”
Would removing Mwendwa through the ballot or a Normalisation Committee lift the lid on the OB van deal?
Nobody knows. Standard Sports, however, posed nine questions to FIFA on 26 March, and the questions copied to everyone that matters at FIFA including General Secretary Fatma Samoura.
Infantino was not copied.
Nine questions unanswered
The response came on Monday 5:30pm. It said: “Dear Robin, Thank you for your e-mail – in the future, we kindly ask you to simply write to email@example.com, the email inbox through each all our media enquiries are channeled.
“A member of our Media team is always on duty and will then be able to answer you on a timely manner.”
On substance of the nine questions, this was the answer attributed to a FIFA spokesperson: “FIFA received the report from the FKF and its lawyers regarding the non-delivery of the broadcast vans and equipment.
“FIFA has asked follow-up questions based on the report and we are engaging with the FKF in order to assess the options that are available.
“The FKF has also provided responses to locals stakeholders such as the Sports, Culture, and Tourism Parliamentary Committee. FIFA will continue to monitor this matter, and further updates will be provided in due course.”
So, how does this likely duck look like?
To get Nick Mwendwa re-elected as President, FKF put together an Electoral Board and approved it in an AGM on 5 October 2019 – five months before his term of office expires.
The Board immediately penned 23 November as the day FKF would elect County officials, who would in turn pick the National Executive Committee and President on 3 December.
But what is wrong with that?
Article 4(2) of FIFA’s Standard Electoral Code says, “The members of the Committee are not permitted to serve for two consecutive terms.” Mwendwa’s team had picked and approved Edwin Wamukoya as chair, yet he was ineligible having served in the same capacity in 2016.
Secondly, FKF officials according to insiders were whipped into approving Elynah Shiveka, the vice-chair of the Sports Disputes Tribunal to sit in the Board. That is not all.
FIFA in its preamble of the Electoral code says, “organising elections in an association necessitates a long and complex procedure.”
In Article 4(3) FIFA also notes, “the ordinary general assembly at which the Committee is elected shall take place at least six months before the elective general assembly at which the executive body is Elected.” Wamukoya’s Electoral Board put 7 December 2019 – just 63 days into the six months required by FIFA!
Faulty electoral code
Disgruntled stakeholders moved to the Sports Disputes Tribunal to among other issues, challenge this blatant violation of the FIFA Electoral guidelines and a lack of public participation in formulating the electoral code.
They also said FKF had not complied with the Sports Act 2013, which they are provisionally registered and regulations 2016.
The Tribunal’s verdict on 3 December 2019 was a no brainer.
The SDT, chaired by experienced arbitrator John Ohaga, Njeri Onyango and Mary Chege, predictably cited FKF for violating Articles 4(2) and 4(3) of FIFA Statutes and failing to conduct public participation in accordance with Constitution of Kenya 2010.
The SDT also concluded that as an employee of Kenya Broadcasting Corporation, Shiveka qualified to be a public servant and therefore ineligible to serve in the FKF Electoral Board, never mind that she is a member of the Sports Tribunal.
It thus nullified the 23 November County election results and those that had been penned for 7 December.
The SDT ordered the Electoral Board be disbanded and reconstituted afresh as per the FIFA guidelines and public participation be conducted in accordance with the rules and regulations of the Kenyan election principles.
FIFA agrees with SDT ruling
Zurich had already sent its Governance Services Manager – Sarah Solemale, to Nairobi for the polls initially slated for 3 December.
However, with the SDT having nullified the exercise, Solemale with CAF delegation engaged in extensive consultations with the Sports Ministry, the Sports Registrar, FKF and the Sports Tribunal.
On 12 December, Solemale stated FIFA’s position thus;
“FIFA is closely monitoring the situation to ensure the compliance of the SDT decision is done and also within a reasonable amount of time. It is important for FKF to know that at the end of the presidential and the National Executive Committee term which is to end on February 10, 2020, elections must be held.
“FIFA is very strict about that. We can be flexible and give an additional month but within the first trimester of 2020 – elections must be held.”
December 13, 2019: FKF runs for cover at Sports Ministry
Standard Sports was made aware of a letter the FKF wrote to Sports Cabinet Secretary, Amina Mohamed, on 13 December, a copy of which we have, asking her to allow them continue with the elections the SDT had nullified.
Standard Sports never got to know the ministry’s response to the letter.
It later emerged the Sports Registrar opposed such attempts, insisting FKF must comply with the minimum requirements contained in the Sports Act 2013.
FKF moves to SDT on February 25, 2020
Convinced they had complied with the SDT orders issued on 3 December, 2019, FKF returned to the Tribunal to have the Sports Registrar compelled to accept returns of the elections they had scheduled for 14 March and national elections on 27 March.
FKF’s wanted quashed, a provision in the Sports Act 2013 and regulations 2016 requiring that they register their stated 48 branches as County Sports Associations quashed.
And this prayer, the SDT had to listen to and rule on it urgently to allow the newly constituted Electoral Board start work in order to comply with FIFA’s directive issued by Ms Solemale that they conduct elections latest by end of March.
FKF’s petition against the Sports Registrar attracted over 50 interested parties.
These parties had noticed a brazen yet systematic violation of Fifa Statutes and laws of the country on principles of democratic election processes. Out of FKF’s stated membership of 6000 clubs, most of them at Sub-Branch/Sub County level, 5000 were denied the right to, at the very least, nominate those who would represent them at National level.
Section 4(2a)(ii) of the FKF Electoral Code (each candidate shall have been active in football for three of the last four years before being proposed as a candidate) made it even impossible for anyone, even former footballers or FKF officials to offer themselves for elective positions.
The interested parties argued, it was for this reason the President, Deputy and officials in 39 out of 47 counties were unopposed, thus making it a coronation rather than an election exercise.
The interested parties submitted to the SDT that these ‘missteps’ were ‘calculated’, resulting in FKF failing to conduct elections within their term of office, that is February 10, 2020.
After spirited submissions – with opening remarks by FKF president Mwendwa at the Milimani Court room on February 25, the SDT marked March 17 as the date to pronounce themselves.
Efforts to contain the spread of coronavirus meant the verdict was delivered via Video Conference.
The SDT on March 17 granted most of FKF’s requests except on the eligibility criteria, which it said was of greatest importance. It said in paragraph 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.”
In paragraph 166 the SDT concurred that the poll was nothing short of a coronation exercise.
The SDT declared 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.
It, therefore, declared that the intended elections and the process towards these elections unlawful for non-compliance with Article 38 and 81 of the Constitution of Kenya. It also called time on the FKF NEC’s term declaring that “the term of office of the NEC is at an end.”
With this unfolding abnormal situation, the SDT requested that Fifa appoints a Normalisation Committee for the purpose of among other things, organising the elections of the FKF, who twice, had failed to deliver in line with the Fifa Statutes and the supreme law of the land, Constitution of Kenya 2010.
Enter Veron Mosengo-Omba, Fifa’s about-turn
Eight days after the SDT ruling on 17 March, Fifa’s Chief Member Associations Officer Veron Mosengo-Omba wrote to FKF.
The message was startling not only to the interested parties, but Sports Tribunal and Government. Mosengo-Omba wrote: “We would like to highlight that the FKF statutes do not expressly recognise the jurisdiction of the SDT as being the ultimate arbitration forum at national level.
He added: “We note that the SDT is not a national arbitration tribunal in the sense of Fifa circular 1010 dated 20 December 2005… Therefore, we wish to emphasize that the relevant SDT ruling has no legal effect on Fifa.”
Ironically, the Fifa official called for a meeting with Sports CS, SDT, FKF and other relevant stakeholders “for the sake of peace” while making clear that “the current FKF Executive Committee members, including its President, shall remain in office.”
On the same day SDT chair Ohaga told Standard Sports, when it sought his reading of the letter that, “It appears to contradict what I discussed with Fifa.
Anyway, the Tribunal has made a decision. If Fifa are unhappy, they can appeal to CAS. FKF runs football in Kenya first and foremost and so they have to abide by decisions of the Sports Disputes Tribunal of Kenya.”
Sports CS Mohamed appeared equally astonished when she told the Daily Nation that, “Kenya is a country of the rule of law guided by a Constitution that recognises Tribunals as a core component of the Judiciary and the role of Parliament in enacting laws as the derivative power of the people of Kenya.”
Everyone that mattered in Kenya felt betrayed that Fifa had played along since 3 December SDT ruling only to turn around and show the Tribunal a clean pair of heels.