Going by the mouthful of a headline , there may ways of killing a rat and one of which is just hanging it up by its tail to starve to death. So, in writing this article, I will do the simple thing and type as things come to my mind. Don’t mind me when I juxtapose arguments and issues provided at the end of the day we are all on one page. Updated.
Agreed? Ok here we go…
1. COURT CASES UPDATE
There are some new twists to the Ndola High Court case between Damiano Mutale et al and FAZ.
Instead of the Inter-Parte Hearing being heard in April, – thus postponing the FAZ elections through court actions – the Ndola High Court agreed with FAZ lawyers to bring forward the inter-parte hearings to tomorrow Thursday 19th March 2020. This was done in lieu of vacating the injunction against FAZ holding elections. FAZ did oppose the court order by applying for the order to be vacate.
Ok so yesterday around this time of the day, I broke the news that Damiano’s lawyers had availed to the public copies of summons for Contempt of Court issued in the Lusaka Surbodinate Court by a magistrate, which they planned to serve on Andrew Kamanga, Adrian Kashala, Ronald Hatongo, Steve Nyondo, Alistair Kaleji, Bazolo Museteka and Christopher Munachuka, for what the plaintiffs believed was a case of proceeding to hold and conduct the FAZ electoral process and elections in breach of the ExParte Court Order dated 11th March 2020 contrary to section 116 of the penal code CAP 87 of the laws of Zambia. My assumption yesterday was that Damiano had served those summorns on FAZ. But, true to form, it has come to my attention that, at knocking off time today, Damiano has not served those summons even as they fly around the blogosphere and social media, just like he did with the Ndola High Court ExParte Order which went viral first before being served 5 days later.
In a bizzare turn I was not prepared for, what I didn’t know at the time was that there was another contempt of court case raised in the Ndola High Court by the same Damiano against the same respondents as in the Lusaka Magistrate case as shown in the posting made online by many people (and attached kindly find hereto).
I know that FAZ lawyers have opposed the contempt case in Lusaka and submitted that the case is merely forum shopping, duplicity and abuse of courts since that suit was already before the Ndola High Court which has jurisdiction over lower courts. They also mentioned that even the time the Ndola High Court was issuing an ExParte Order, there had been an attempt in Lusaka to get one but it failed when the court opted for InterParte Hearing.
On 16th March 2020, I reported that FAZ had suspended the Electoral Process temporarily to respect the Ndola High Court Ex-Parte Order. And that contrary to various earlier misleading reports, Damiano Mutale had finally served the Ex-Parte Order on FAZ that morning. I had always insisted that earlier reports were false. In a letter dated 13th March 2020, Damiano’s lawyers wrote a letter to the Inspector General of Police saying FAZ had committed contempt. The interesting thing in that letter was that it suggested that the order was served on FAZ elections Chairperson Ronald Hatoongo. The police did not issue a statement on this matter. So we couldn’t know what they made of this issue raised by Damiano’s lawyers. A later letter going to FIFA also accused FAZ of contempt. Then on 15th March, I submitted to you dear readers of my articles that, for me, the service of the Court Order was irregular and there should be no contempt. I further said that the final say would be by the courts when the parties met for inter-parte hearing or if the plaintiffs started contempt proceedings, as the case would be.
So tomorrow we shall hear what the judge says in terms of the contempt charge, the injunction against the elections and the AGM as well as whether he will decide that he has powers to reverse decisions of the Integrity Committee and the Elections Committee despite FIFA guidance. I am not sure of the perjury and false documents charges are before this court yet.
My take is that the High Court will see the need for the FIFA jurisdiction to be respected and will vacate the order and allow elections to proceed. I wont talk about the merits of Damiano’s case in terms of reversing the Integrity and Elections Committees decisions because I believe that won’t be necessary as elections are likely to go ahead as scheduled and with the current candidates only.
2. COURT OF ARBITRATION UPDATE
Kalusha Bwalya has lost the first preliminary decision by the Court of Arbitration for Sports on the issue of whether the case he had brought on appeal was a footballing one and so CAS needed to handle the case with costs being paid for by the court itself and then later if FAZ lost the case charged to FAZ.
In my past articles on this major case – which I always say is the best route for Kalusha Bwalya to get back on the ballot this year or 2024 – I have insisted that Kalusha would win the preliminary of using Swiss Law in the case in addition to FAZ law and FIFA statutes but I said he would lose on the preliminary for paying the deposit on the costs of the case. Turns out, this Facebook ‘lawyer’ ak.a. amateur writer was right as all. I wont be arrogant about it anyway because I will also be wrong sometimes.
The court, in its email to Kalusha’s lawyers in Spain and Zambia and FAZ lawyers ordered that each party pay CH 11,000 (Swiss Francs) by end of the day 16th March 2020. I have not managed to get confirmation from FAZ if they paid their CH 11,000 and I am not in touch with Kalusha to confirm his payment either. However, since Kalusha is the appellant, the onus is on him and the case hinges on his payment. FAZ can ask for more time. If Kalu has paid on time, then the case goes ahead but it will only be heard after May 1st 2020 due to the change in rules and procedures including no in-person hearing before Labour Day due to the Coronavirus (COVID-19). If he hasn’t paid the fees then it’s case close. Curtains, as we say in showbiz. This is how Blackwel Simwanza’s case collapsed at CAS but Kazala’s case was heard.
I had promised an update on this case this week on Thursday and today is Wednesday. So I think am doing fine so far. I will be back on this case on Friday to advise on further preliminary decisions.
3. TERM OF OFFICE FOR KAMANGA AND CO.
“Term of office” and “holding office twice” debates are for politicians. Us we are football people. That is why, since I started this series of articles, there has been no mention of partisan politics or politicians and I have restricted myself to just Kalusha, kamanga and FAZ. And of course the villain of the piece Juan (One) Damiano Toriano and the famous lawyers who had done a brilliant job for Kalusha and deserve every ngwee they will ask for.
There has been questions asked as to whether The Kamanga executive will still be legally in office after tomorrow. This is in view of the fact that tomorrow marks exactly 4 years since Kamanga trumped Kalusha at Moba Hotel in 2016.
Kamanga’s erstwhile ally Simataa Simataa said on Facebook this morning: “Tomorrow midnight (March 19 2020), marks the end of tenure of the current FAZ Executive Committee. They were elected in the AGM of March 20 2016. The FAZ CONSTITUTION states in article 33 (3) that “the term of office of the President shall begin after the end of the annual general meeting at which he/she was elected.” And on the committee members, article 33(4) says their terms of office shall begin after the end of the general meeting at which they were elected.”
Simataa argues that “So no extra time. On March 20, 2020 they are “former” FAZ executive committee members. There will be no succession problem. The FAZ council meeting of 5th February 2000 held at Masiye Hotel resolved unanimously that ” the General Secretary be empowered to undertake those functions of the Executive Committee provided that the General Secretary calls for a full council meeting to elect a new Executive within a period of 45 days”. No law, subsidiary or otherwise, is above the FAZ constitution.”
As fate would have it, I had planned to write on this matter and I have read the FAZ constitution as well and feel confident enough to take on the former FAZ president (the president of FAZ when Zambia reached its highest ever FIFA ranking in history). Simataa is my mentor and despite his controversial persona is a man i respect a lot especially on his integrity. So debating with him today is a great honour.
My argument is simple. Lets look at the law. Simataa’s view is the simplistic way of reading the constitution where you say 4 years and then you check the calendar and end there. However, when articles are read with other provisions, the situation suddenly changes. I submit that the constitution of FAZ, the FAZ Council sitting during the EGM in January 2020 and FIFA when approving the 2020 FAZ Elections Road-map all mandated the current executive to go on beyond 19th March by sanctioning elections on 28th March 2020 when elections end are to end with presidential elections. In this case, if elections are further delayed to whatever date the presidential elections are held by courts, CAS or coronavirus, Kamanga’s executive still return legitimacy and mandate.
Now you see me I am just a kapyopyo and an amateur writer and FAZ and Kamanga have their lawyers they pay to do this. But whats the fun in waiting until decisions are made? Lets debate so our body of knowledge increases. I have the interest of reading laws. I have read through the FAZ Constitution and I can address Simataa’s issue.
Let me remind the readers that the “Kamanga executive” was voted for under the old constitution which was valid in 2016. Right now we are holding elections under the 2017 constitutions. So which constitution do we rely on?
When one reads transitory provisions in the current constitution, one sees how to handle a period such as this one when we are between two constitutions. When moving from one constitution to another, there are always breaches depending on which constitution you use – e.g. Is ECL eligible to stand in 2021? Which constitution do we use? 2016 or current? In the end, we look at what the law allows in terms of moving from one constitution to the other. I have not been lazy to read those provisions. When I decided I was gonna write about this election period I didn’t plan to be slouch but to be dedicated, truthful, factual, transparent and objective.
Since Simataa has already established the tenure of office, lets look at article 5 of the FAZ Constitution (as amended in 2017) Transitory Provisions which can be found on page 35 (last page) of the constitution.
It reads: “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.
End of Quote.
The capitalisation is mine for emphasis but that is what Simataa neglected to look at. He only looked at the words before “OR”. This means that if there is a delay in elections, whether due to COVID-19, courts, NSCZ or FIFA, the Kamanga executive remains in office until the day the AGM is finally help.
The conditions for appointing a normalisation committee by FIFA do not arise here. I will explain in one of my future articles before we finish this series and I retire back to the terraces.
Now you see my readers, this issue of transition can be looked at this way. Until the new constitution is fully operationalised, there will be use of the transitory provisions. It is like Simataa arguing that the current constitution provides for 13 ExComm members, and yet the one elected from 2016 has only 9. Can we call having the 9 a breach? I don’t think so. It isn’t. But how do we reconcile the two? The current executive used powers given to is in the Transitory provisions to defer the election of the 13 to the 2020 elections.
Article 3 of the Transitory Provisions reads: “All provisions of these Statutes shall become enforceable immediately upon its adoption though the Executive Committee shall have the discretion to make such modifications, adaptations, and exceptions as may be necessary to bring all the provisions of these Statutes into effect. In particular, the Executive Committee shall only be allowed to exercise its discretion in relation to the provisions of these Statutes that shall be impractical to immediately implement pending setting up of the appropriate structures as provided by these statutes.”
So, after the new ExComm is voted for by 28th March 2020, ALL PROVISIONS in the FAZ Constitution become applicable to the letter and the Transitory Provisions no longer apply.
Which brings me to another matter which Mr Simataa has been pervading and which Damiano raised in court and Mumbo Lombe raised at the NSCZ. This was also raised at CAS by Kalue. The question is that, since the current constitution requires that The Ethics Committee, which barred Kalusha form standing, needed to first undergo an integrity test itself, do their decisions carry weight? The constitution clearly states that the FAZ Audit Committee will perform integrity checks on FAZ Ethics Committee members and vice versa.
The answer to that is simple. When FAZ adopted the new constitution both committees were not in place so neither could perform the integrity tests on the other.
Using the same transitory provision 3, The ExComm waived this requirement. For lawyers, FAZ asked the Law Association of Zambia (LAZ) to give it a reference as to the suitability of the appointees. The LAZ opinion on its member is far higher measure of integrity check than what would be applied by FAZ Audit Committee. Likewise for the accountants, FAZ asked ZICA to confirm suitability of the appointees to sit on the FAZ Audit Committee. Again ZICA has a higher degree of integrity check on its members than what FAZ would have applied.
Going forward, FAZ now has to simply retire one of the two committees earlier than the other to facilitate integrity checks by the existing committee before retiring the older appointees. Then the newer committee check the integrity of the replacements in the older committee.
Nalema, I will end here. Let me do 99 jobs now.
This was yet another long article. I insist that if I am to summarise, we can lose a lot. These articles are features not news stories or PR pieces. These are to record the history happening now in our beautiful game.
