By Shalala Oliver Sepiso

You have to admire Damiano Mutale, this man is a rare breed. He is a football administrator who is not scared of threatening and warning the same global organization within whose tenets, realm and sphere he runs his academy.

Mwauka guys? Ok so as I promised, let me tackle the issue of contempt in the case of Damiano for the last time. I will address my mind to the letter that Damiano’s lawyers wrote to FIFA having already addressed the issue of serving the court order and also letter the lawyers wrote to the police.

Ok, so long story short: FIFA basically told FAZ not to obey the court order. It says if FAZ obeys the order it may face a ban. So let’s address the FIFA letter and Damiano’s unsolicited response.

“We acknowledge receipt of your correspondence dated 12th March 2020, by means of which you updated our services on the overall electoral process of The FAZ. In particular, we understand that candidates not being successful before the appeal body set up for the relevant FAZ elections, filed appeals namely before the National Sports Council and the High Court of Zambia, which issued an ExParte order to stay FAZ electoral process. In this regard, we refer you to art 63 of FAZ statutes, which states that disputes in FAZ should not be taken to ordinary courts unless specifically provided otherwise by these statutes, FIFA Regulations or legal binding provisions. We understand the aforementioned article is in line with one of the FIFA core principles contained in art 59 par 2 of FIFA statutes, that is, prohibition of recourse to ordinary courts of law unless specially provided for. FIFA takes such a principle with the utmost seriousness and therefore considers that it is the responsibility of its member associations to ensure that this principle is implemented at their level through a binding obligation on their members. Moreover, we would like to remind FAZ that, FIFA attaches importance to the obligation for all its member associations to manage their affairs independently and ensure that their own affairs are not influenced by any third party (cf art 14 par 1 lit (i) of the FIFA statutes. We further wish to underline that a violation of the obligations laid down above by FAZ or its members may lead to sanctions as provided for in the FIFA Statutes, including a possible suspension. In this context, we must highlight that any decision rendered by the High Court of Zambia or any other government tribunal with respect to this electoral process shall be considered as a violation of art 14 par 1 lit (i) and art 59 par 2 of the FIFA Statutes. Therefore, we inform FAZ that, should the relevant ordinary/governmental tribunal(s) expect enforcement of any of the decisions rendered from their part relating to the ongoing electoral process, the matter would be brought to the attention of the Bureau of the FIFA Council for consideration of suitable measures and possible sanctions. In a different note, we would like to remind you that the electoral process shall run its course….[signed by Veron Mosengo-Omba, Chief Member Associations Officer]”

The first issue which arose when this letter went viral was the absence of the letter which FAZ wrote on 12th. Those in the Damiano camp accused FAZ of lying to FIFA including the fact that the person in court is not a candidate in the elections and is not Kalusha Bwalya or affiliated with the great one.

Whereas nominally and literally it is not Kalusha Bwalya who went before the Courts and NSCZ, the understanding among soccer fans, local administrators etc. is that those who went there are proxies of the great one and it is realistic him. With these people usually associated with him and fighting the same battles and using the same lawyers it seems like “if it quacks like a duck, ambles like a duck, swims and flies like a duck and looks like duck”, then most likely it is a duck. This must be the understanding of FIFA seeing also that arguments used at CAS and the lawyers used there are the same as at NSCZ and the court cases.

But assuming that there is no connection between Damiano Mutale and Mumbo Lombe to the great one, then why are these two fighting to stop elections which they are not parties to? They definitely do not have loci standi in the matter. If they had stood and were unsuccessful, then they had something to lose and stopping the process would be good relief. Further it has been argued before and will be argued later that the to are not registered officials within FAZ. So as things stand, whose interests are they championing then?

Again I say, did you know that Damiano Academy, which Damiano Mutale says he is Secretary General of attended the elections at Levy Mwanawasa Stadium and voted? Should the academy also be cited for contempt for defying its leader and owner by attending a meeting he was trying to stop? What does it say about the strength of Damiano’s case if councilors are attending the elections and “ignoring” court orders and letters to FIFA and NSCZ? Is the tide against Damiano but with FAZ?

Then we had the response from Damiano’s lawyers.

“Kindly note that we act for Mr. Damiano Mutale who represents Damiano Football Academy of Mufulira, who are in the third division of the Copperbelt Region of the Football Association of Zambia league and we also represent Mr. Patson Lusaka of Brave Rovers Football Club of Kitwe who play in the Copperbelt amateur league of the Football Association of Zambia (FAZ). A letter authored by yourself dated 13th March 2020 has been made available to us. We note that in the said letter you are encouraging anarchy and defiance of Court Orders issued by the High Court of Judicature for Zambia which enjoys original and unlimited jurisdiction to decide all matters that are brought before it. No statute in Zambia has ousted the High Court’s Jurisdiction to deal with rights of members of FAZ when the same are violated. We also note that you have apparently been informed that our clients aforesaid were unsuccessful in the FAZ nomination process and filed appeals before the National Sports Council of Zambia (NSCZ) and the High Court of Zambia. We doubt that you have any proof of this. Our clients have not filed any appeals before the said bodies because the appellate procedures regarding decisions emanating from the judicial bodies of FAZ are well known. Clearly, you have been fed with untruths and unbaked information. It is quite surprising and worrisome that a global body of your stature can act on unverified information from one party. We take issue with your express encouragement of FAZ to defy a duly issued and still effective court order halting the deficient electoral process. This act is contemptuous of the High court for Zambia and we promise that appropriate orders will be promptly sort against your person and that of your entire committee and any orders emanating therefrom will remain outstanding and enforceable at an appropriate time and in the future. Therefore, be warned that should FAZ and its officials continue conducting the charade of the electoral process, they will face the tenacity of Zambian law including, but not restricted to citizen’s arrest. We implore you to counsel FAZ executive to obey the court order until the matter is resolved. This is very important in the interest of health and safety of all involved. You are accordingly informed and do acknowledge your receipt of this our letter.”

Maybe to put this into perspectives, lawyers don’t speak on their own. They speak on behalf of a client. So Damiano Mutale is basically the one who is threatening FIFA that if it supports FAZ in not going to court, Damiano will arrest FAZ officials in a “citizens’ arrest” for contempt. And he will also arrest FIFA officials from the membership committee whenever they land in Zambia.

Now this is where my not being a lawyer becomes a limiting factor and also a blessing. You see readers if I was a lawyer, I would be constrained by LAZ rules not to dispense my legal opinions openly and for free. As a kapyopyo I am currently speaking freely. But I get stuck sometimes. Right now am stuck. Is contempt something which is declared by a litigant, in this case Damiano Mutale the plaintiff, or by his lawyers, i.e. Mosho? Isn’t contempt declared by the courts of law? I feel that contempt of court is considered a prerogative of the courts.

Secondly if the contempt is actually declared, isn’t the enforcement of the same to be done by the police? It seems that the Zambia Police (Amendment) Act, Cap 107 of the Laws of Zambia only leaves arrest to police officers and members of a crime prevention and control association established under subsection (2) of the Police Act. It seems also that the only time that citizen arrests are allowed are when someone is found commissioning a crime. But where this is done for a civil matter such as this contempt, I think there is a chance of the law reinterpreting this as an “abduction” or even “false imprisonment”.

I love Damiano! He responded to a letter in which he was neither an addressee nor copied. And he asked his lawyers to ask FIFA to acknowledge his letter. I am not sure FIFA has responded and I doubt that FIFA will respond. You see, FIFA doesn’t recognize anyone else in Zambia apart from the FAZ Secretariat and council in its communication. The FA communication is addressed to the Secretariat through GS and for the FA Council through the president. FIFA can address disciplinary issues directly to parties like clubs, players etc. Since Damiano or anyone else has not written to FIFA to appeal the FAZ elections (or earlier avoided FIFA) it is interesting to see him now write to FIFA. So as I was saying, in terms of communication, FIFA recognises only Secretariats for management and administrative matters and council for governance issues. If a decision is made by the FAZ disciplinary committee it is still the GS to communicate that to FIFA. If FIFA wants a report from the League Manager or the Referees manager it’s still GS to communicate. For governance issues like elections, CAF participation and FIFA it’s ideal to address to fhe president on behalf of Council or hope the DG will pass them on. SOPs. Best practices. So Damiano having neglected FIFA in his process is not likely to have favourable responses from FIFA and FIFA will only listen to the FAZ GS.

Let us get back to the letter: The use of the words “in the interest of the health and safety of all involved” seem to be too strong for a football matter. Surely football should unite us and should not lead to loss of health or safety. Let football come with fighting of minds and schemes not the use of force and strength.

On the contempt issues, my view is that whereas FIFA is right that courts should not come into the running of the beautiful game, it should not advocate for the disrespect of the rule of law of the land. As soon as it is served the ExParte order, FAZ must comply with the order just long enough to explain to the court the need to vacate the order and let the process continue.

In conclusion, if the Kamanga-led FAZ refuses to obey the court orders, they cannot morally rely on laws later on. In as much as the order may be irregular, they still have to use legal means to fight it. A friend of mine reminded me of cases where “a public body can make a decision that is illegal(i.e. unlawful) or smacks of procedural impropriety(i.e. ignores rules of natural justice such as ‘do not condemn someone before you hear them’) or is indeed irrational.” An irrational decision, according to Lord Diplock, is a decision “so OUTRAGEOUS in its defiance of logic or of accepted moral standards that no SENSIBLE person who had applied his mind to the question to be decided could have arrived at it”. In all this, we agreed that despite decisions being seen as irrational, unlawful or irregular, laws of the land have to be respected. The same laws and the courts and the same procedures should be used to set the ExParte Order aside.

Similarly, if the Damiano Mutale camp including those wanting to stand as candidates are to ignore FIFA and ignore FIFA statutes by going to the courts, then find their way into FAZ, will they then later want to obey and rely on the same FIFA status once in the top positions of FAZ? Remember that Blackwell Siwale once sued FAZ in ordinary courts of law and his case has died a natural death. Simataa Simataa and Andrew Kamanga also once did that. But their efforts amounted to nothing. Only an election win in 2016 made a difference.

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