DOES THE LETTER TO THE MINISTER CHANGE ANYTHING AFTER FAZ MANDATE AND ELECTIONS?
Good afternoon family, its good to be back writing about the current leadership wrangles within Zambian football and indeed topical issues therein. Many have called, inboxed me to make an opinion on what has happened since I last wrote. So I decided to write since this morning was my resting day from jogging.
The reason I did not write anything earlier is that nothing has changed really. We are still in the same position. Court cases continue. FIFA remains of the same opinion. NSCZ has stated what it stands for. CAS remains with one ruling to go. The letter or any subsequent suit would just test the status quo.
I won’t say much about the letter which was written to the minister by Kalusha and co. (Notice that I say Kalusha and not his lawyers. This is because lawyers speak on behalf of someone.) The only thing to say is that that letter won’t change anything in terms of who can stand in the FAZ elections. Only the case at Court of Arbitration for Sport can change things for Kalusha on one side and for FAZ on the other side. Even the case in the local courts eventually will be a collision course with FIFA and we know that FIFA will prevail. Courts can delay processes through orders but won’t overrule FIFA unless Zambia was to leave FIFA and start playing alone.
Then there is the threat to sue if the FAZ executive stays in office despite the guidance of FIFA. Now FIFA is not the one that gives power to the executive to stay in office. The letter FIFA wrote was just responding to FAZ about their stay in office and postponement of the elections. It is the FAZ Constitution.
The issue of the term of office in the Constitution of FAZ is very clear. A president of FAZ or Executive Committee has a term of office of four years. Holding the office and a term differ. The Supreme Court already ruled on this in the Edgar Chagwa Lungu case a few months back. The term of office for the Kamanga Executive has elapsed. Yes. True. But the constitution allows the executive to continue to hold office until another ExComm’s term of office starts. The FAZ Constitution says the executive only hands over its powers after elections to another executive. This is in line with most constitutions that avoid power vacuums.
Article 33 (3) of the FAZ Constitution of 2017 (as amended in 2019) establishes that “the term of office of the President shall begin after the end of the annual general meeting at which he/she was elected.” Article 33(4) says the terms of office of the executive committee of FAZ shall begin after the end of the general meeting at which they were elected.” The term of office is already established as 4 years. Now let us look at Article 5 of the Transitory Provisions of the FAZ Constitution of 2017 (as amended in 2019) (which can be found on page 35 (last page) of the constitution) we find the following: “These Statutes do not affect the composition of the Executive Committee, and any person holding an office in the Executive Committee shall continue to serve as such for the unexpired term of that office as stipulated by the Statutes OR UNTIL THE NEXT ELECTIVE AGM.
So clearly, until elections are held, the Kamanga Executive stays in office legally. This is the reason why FIFA endorsed or agreed with the mandate to continue in the face of COVID-19. Those who don’t agree can get a legal interpretation from the courts but they will lack jurisdiction to implement whatever they come up with. There are only two bodies that can change matters against what FIFA has agreed to The FAZ Council and the Court of Arbitration. Going to CAS can be tricky with no loci standi or with not all processes exhausted. So the most sensible route is the FAZ Council, which is all clubs eligible to attend the AGM.
One more issue, if the next election is the benchmark, how about the postponing of elections? Article 79: Unforeseen Contingencies and Force Majeure (found in PART VIII: FINAL PROVISIONS) of the 2017 FAZ Constitution (as amended in 2019) which provides for powers of the Executive Committee in the face of force majeure or unforeseen contingencies, reads: “The Executive Committee shall have the power to decide on all cases of force majeure and on all matters not provided for in these statutes, such decisions to be made according to the rules of justice, taking into account the relevant regulations of FIFA and CAF.” So when FAZ postponed the elections and FIFA endorse “taking into account the relevant regulations of FIFA and CAF”, it means the mandate is there till the next elections.
Lastly, the Kamanga executive would have been cited to have overstayed if it had not started the elections before its term expired. However, elections started before 20th March 2020. This is the first time elections are starting in the provinces. So when provincial elections start in the provinces, we can legally say the elections have started. For now, they are suspended pending the ending of the COVID pandemic and also the lifting of the Exparte Order in the Ndola High Court to temporarily put paid to the elections.
By the way, if Kalusha is to lose his appeal at the Court of Arbitration, there may be plans to appeal to the Swiss Federal Tribunal or the Federal Supreme Court of Switzerland. R46: Award of the CAS CODE 2019 Edition says: “The award, notified by the CAS Court Office, shall be final and binding upon the parties subject to recourse available in certain circumstances pursuant to Swiss Law within 30 days from the notification of the award by mail or courier.” This can only happen if the preliminary request to use Swiss Law in the Case between Kalusha and FAZ is granted to Kalusha Bwalya. However, the same R46 restricts non-residents of Switzerland from using that route. So kaya.
If this were to happen, many will attack Kalusha for fighting tooth and nail and all the way. However, I will defend Kalusha’s rights to go all the way. He has the right to appeal to be able to stand. Let the process play out. That way there is no second-guessing. He has human rights as long as he can pay the fees. The deposition at CAS claims that the legal fees for his team were calculated CHF30,000 which is a cool K570,000. This is different from the court fee of K20,000 and the deposit for costs which is K209,000 with a waiver or K418,000 in full. For me, I believe that he has the right to fight the battle till the end. And we should indulge him and preserve his legacy because he has earned it.
In my next article, I will explain why I think Kalusha will go through this election period and come out intact whether or not he stands for elections.
In conclusion, I don’t even know why I wrote this article. Many people don’t want me to write. Some have threatened me. But I know that the time when people really hate a writer is when the writer proves that he was absolutely right when the people wanted him to be wrong. Those that want me to stop writing will think I am stubborn and I have an attitude problem. But I think they just have a perception problem. I also recognize that I have a duty. I am a leader and a leader has to make decisions. My decision is to continue offering my opinions and counsel. I know my decisions will cause divisions and make me lose friends. But it comes with the territory. “To be a great leader you have to be decisive. …’ when you decide, you divide’. – Piers Morgan. So I won’t please everyone. I can assert that these are just my opinions and I am not in any way saying I am the only one who is correct. Thing is… the trouble with us “educated” Zambians is that we think our views apply to everyone, and we believe our illusions to be the reality, that our views are the only view! Every national election has shown us how wrong we are when the common man o the streets choose for us the elite. But we refuse to learn. We don’t want to listen. We forget that in every reality there are multiple realities. Its different strokes for different strokes. Later.
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