STATEMENT ON FIFA DECISION TO SUSPEND KENYA By MILITON NYAKUNDI
The country and the world is now fully seized of the decision by the FIFA Council Bureau to suspend Kenya from international football following a meeting held on Thursday, 24th February 2022.
Whereas it is frustrating and disappointing for the decision to have been reached in the circumstances and in spite of efforts by Sports CS Amina Mohammed to engage with FIFA on how best to deal with the situation of our game, which fact FIFA acknowledges in their communique about the decision against Kenya.
My unequivocal support for the CS and government on the decision to invoke Section 54 of the Sports Act in appointing the FKF Caretaker Committee remains unchanged because I firmly believe in that move as having been necessary and timely. I maintain due process was followed as provided for in the law.
Further, I state, for the record, that I firmly hold that the decision by FIFA was unnecessary but I aver that whilst respecting their view of the matters at hand and of course recognizing their right to take the position they have taken.
I will address myself to two pertinent issues that form the bottom line if what we have to deal with as follows:
1. Is there conflict between Kenyan law and the FIFA Statutes?
2. What happens when Kenyan law is violated by FKF officials and if application of Kenyan law in such event undermines FIFA Statutes.
It must never be lost that it is not Kenyan football under trial for violating the law but the former officials who must then face the full force of the law and as they do so they must never hold the game at ransom as a way of blackmailing the government as has been the case. We must deal with issues if we are to get the country out of this mess.
WHETHER THERE IS CONFLICT BETWEEN KENYAN LAW AND FIFA STATUTES
There is, certainly, no conflict between Kenyan law and the FIFA Statutes but there has been a consistent misconstruction and misunderstanding when it comes to interpretation by those who misread the pecking order in applying the legal instruments and how to navigate instances of perceived conflict.
A look at specific provisions of the Constitution of Kenya 2010 and the FIFA Statutes demonstrate that fact and the same principles are upheld, generally, by the Sports Act 2013 as highlighted below:
1. Article 5(1)(b) of FIFA Statutes speaks to FIFA promoting friendly relations.
2. Articles 2, 3, 4 & 5 speak of the values FIFA stand for; which values and principles are similar to what the Kenyan people espouse for themselves under Article 10 of the Constitution of Kenya 2010. Similarly, Rule 8 (1) (q) of the FIFA Forward Regulations speaks to FIFA’s zero tolerance to corruption and other good governance shortcomings, as provided for by Article 73 of the Constitution of Kenya.
3. Article 8 (2) of FIFA Statutes provides for Normalisation Committee, similar to what Section 54 of the Sports Act.
The suggestion that there is conflict is a misguided interpretation of the impugned laws.
WHAT HAPPENS WHEN KENYAN LAW IS VIOLATED BY FKF OFFICIALS AND WHETHER APPLICATION OF KENYAN IS IN CONFLICT WITH FIFA
FIFA, just like the Kenyan Government, does not condone violation of any law and therefore in the present case, there is no doubt that FIFA would allow due process to take course and those found culpable in accordance with the criminal justice system to be held accountable.
It should be borne in mind that as long as due process has been followed as provided by the Kenyan law, as has been the case thus far, no body (individual or corporate) can claim or suggest/insinuate anything to the contrary.
WAY FORWARD
FIFA, having acknowledged that there are issues with the former officials who have integrity questions and accountability shortcomings, including corruption and bad governance; has demonstrated in the last paragraph of their letter of 24th February that they are ready and willing to engage with government authorities.
Accordingly, I propose the following measures as the best way forward:
1. The government , through the Ministry of Sports, and FIFA to recognize the imperative need for collaboration born out of strategic, open and focused engagement with Kenyan football at the heart of the negotiations.
2. Both government and FIFA drop any conditions as evidence of goodwill and determination to resolve the impasse, which position should be premised on the appreciation that both parties are basing their decision on their respective legal instruments which for all intents and purposes are not in conflict.
3. This constructive engagement must be geared towards ensuring that the aforementioned congruent provisions of Kenyan law and the FIFA Statutes are invoked to provide the way forward.
4. That the engagements between government and FIFA should make way for the establishment of a Normalization Committee, with representation by government and FIFA, as provided by the aforementioned provisions of Kenyan law and FIFA Statutes.
5. The NC must then engage with the stakeholders with a view to having an agreed roadmap for the situation to be normalized within the strict timelines provided for under Kenyan laws which take precedence over any other law that does not form part of international law or treaty/convention as determined by the High Court application for Judicial Review No. 100 of 2020.
6. The roadmap must also include the process of aligning the FKF Constitution with the Sports Act and the FIFA before having all-inclusive elections in accordance with the Sports Act and the FIFA Standard Electoral Code to usher in a new regime as soon as possible.
CONCLUSION
I urge that everybody stays calm and desists from the temptation to pass the buck or blame each other over this situation, it is not time to attack anyone over anything they may have done or failed to do as a section of football leaders have atyempted to do; it’s time to rally behind the government and FIFA as they embark on efforts to restore sanity in the FKF.
Sobriety and appreciation of the centrality of the best interests of Kenyan football in all this is not optional because that is what will then lead parties to compromise (without undermining the rule of law) for the good of the game.
Dated at Nairobi on 25th February 2022.
MILTON NYAKUNDI
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