Traditionally with sports claims to autonomy, it has mostly created an internal sports governance structure.
As this columnist has previously argued, this may no longer be the case and a hybrid approach appears to be increasingly emerging, particularly as national sports sector oversight legislation is enacted around the world.
A sports bill called The Physical Activity and Sports Bill is in preparation in Uganda and in the third article commenting on the same, this columnist looks at some of the public interest provisions of the bill in comparison with Kenya.
The law appears to give much power to the National Council of Sports as the be-all and end-all of sports administration, regulation and governance in the country. The Kenya Sports Act 2013 provides for two bodies; Sports Kenya and The Sports Registrar.
Sport Kenya has several functions such as promoting and coordinating grassroots sport programs as well as national and international sport programs. The Sports Chancellery is set up as the licensing and supervisory authority for professional sports associations and also deals with disputes between sports organizations.
Kenyan legislators foresaw the potential danger of entrenching sport’s regulatory, administrative and commercial functions within one body. The Sports Act of Kenya stipulates that all sports organizations in Kenya must be open to the public in relation to their governance, activities and membership.
The Sports Code does not contain a similarly crisp and clear provision, but simply sidesteps the issue, and even when it attempts to empower the common man to inspect the affairs of sports federations, it uses arbitrary language, “may”.
The above provision was challenged in a constitutional motion tabled by embattled former President of the Football Association of Kenya (FKF), Nicholas Mwendwa, who questioned the powers of the Kenyan Criminal Investigation Department to subpoena him and search the accounts of the FKF, after a certain Milton Nyakundi filed a complaint about Oriku.
One of the reasons for the petition was that Milton Nyakundi Oriku is a “non-football stakeholder” and cannot file a complaint against FKF.
FKF and Nicholas Mwendwa argued that Milton Nyakundi Oriku lacked an “identifiable interest” in the affairs and conduct of FKF and therefore had no authority to file the said complaint against FKF and Nicholas Mwendwa.
To put Mwendwa’s point in context, the Fifa Statutes define a football stakeholder as “a person, company or organization that is not a member association and/or body of Fifa but has an interest or interest in the activities of the Fifa has measures, objectives and policies, in particular clubs, players, coaches and professional leagues, which may affect or be affected by the activities of Fifa.”
Pretty clever wording if you ask, especially the last part of the stipulation that locks out everyone else who doesn’t fall into the categories mentioned.
The court disagreed with this reasoning and found vehemently that the Kenyan Constitution and in particular the Sports Act allow Milton Nyakundi Oriku to lodge the said complaint.
Nicholas Mwendwa and FKF had also argued that the disputed monies originated with Fifa, which provides extensive financial audit mechanisms through its statutes, and that this accountability had already been rendered to Fifa.
The court reasoned that the existence of the above review mechanism does not negate the jurisdiction of the criminal police and the prosecutor’s office, which are constitutionally established government bodies.
This dispute sparked the Fifa ban of Kenyan football, but speaks volumes about what a people-centric sports law can achieve. It is an understatement to reiterate the point that those responsible for bringing this law to life must continue to conduct full and robust deliberations.