By Shalala Oliver Sepiso
The National Sports Council of Zambia yesterday refused to take action against the FAZ Electoral Committee and to stop the FAZ elections opting instead to let wrangles and disagreements currently on about candidates for the FAZ elections to be handled through the FAZ Constitution and FIFA statutes.
On February 19th, 2020 Lawyers representing Football legend Kalusha Bwalya wrote to the National Sports Council of Zambia to prevail over the Football Association of Zambia for allegedly breaching provisions of its Constitution during the vetting exercise in which the FAZ Ethics Committee barred BWALYA and three others from contesting the Presidency. In a letter to NSCZ, Lawyer LEWIS MOSHO of LEWIS NATHAN Advocates et al, on the instruction of his client MUMBO LOMBE, demanded that the council exercises it Statutory obligation on FAZ by suspending FAZ for breaching its Constitution and FIFA Statutes. They said the FAZ Ethics Committee was illegal as its members did NOT themselves undergo the integrity checks as required by the FAZ Constitution and that NO FAZ code of ethics had been put in place to guide the operations of the Ethics Committee. Further, they asked for the NSCZ to reverse the decisions of the Ethics Committee and asked for a response and prompt action from the National Sports Council of Zambia.
Consequently, the National Sports Council Meeting of yesterday had two main items: the election of a vice chairman and Action Against FAZ in Item 7. It seemed NSCZ was to take action against FAZ.
Prior to this meeting, I twice argued that the National Sports Council of Zambia has no powers to suspend a committee of an association as demanded by this letter. They can only suspend the association itself or office-bearers of the association. Attempting to change internal structures of an association amounts to direct interference and it is not provided for under the Zambian laws. NSCZ can suspend FAZ and ban football in Zambia but it can’t start suspending officials or committees without using the said association’s structures or constitution. Where it suspends specific officials, there are rules how this should be done. NSCZ can ban officials from being officials in Zambia quiet alright.
I also mentioned that with FIFA having written to FAZ and FAZ availing the same letter to NSCZ, NSCZ was constrained in what it could do as it lacked jurisdiction in some of the issued asked for. Further, even the things which it had powers over, such as suspending football in Zambia, were not going to be in the best interest of the public and would be very unpopular.
In the end, according to a source that attended the meeting, I seemed to have been on the right track. She said: “On the choosing of the vice chairperson was deferred to next month as they will be elections for all council board members. [As many of you know, the NSCZ Board is not in place. And to put it in place, a number of board members have to be elected and some appointed by the Ministry of Sports] Secondly, on the issue of the FAZ elections, NSCZ decided that these would go ahead as directed by FIFA unless the global body later guided otherwise or the Court of Arbitration for Sports stops the elections. The NSCZ acknowledged receipt of the letter from FIFA and was aware of sanctions against Zambia if the meeting had gone on to do what Mumbo Lombe asked them to do. The meeting ended at 14:00hrs sharp.”
When I heard this, I was not suprised. I had repeatedly said I expected that approach and decision. But I didn’t rush to publish the decision because firstly, as a student of 36 Bwinjimfumu Road, I had been taught by Fred Mmembe and my editors Bivan Saluseki and Joan Chirwa to “verify, verify, verify”. So I went ahead to triangulate the information and later saw one of the newspapers carrying a story on the same.
In today’s Daily Mail newspaper, in a story entitled “NSCZ to watch its boundaries”, Diana Chipepo reports from Lusaka that: “THE National Sports Council of Zambia (NSCZ) says it will not go beyond its jurisdiction to preside over matters among its members. NSCZ chairman Patrick Mutimushi said in an interview after the council’s extraordinary meeting at National Sports Development Centre (NASDEC) in Lusaka yesterday that all member associations have respective constitutions which guide their operations and the council is there to guide. “My appeal to all associations is to follow their constitutions which they formulated and remember that they are not an island. They operate in Zambia and there are laws in Zambia. As NSCZ, we follow the law and we have been given the jurisdiction of how we can handle issues in these associaions so that there is transparency and fairness in dealing with their members. NSCZ is there to guide and I want to encourage associations to come to us, we are there for them,” he said. [The story goes on to report that he then confirmed that elections for the NSCZ vice chairperson would be there in a month and a half.] On the Football Assocation of Zambia issues, Mutimushi said that the NSCZ would wait for the processses within FAZ guidelines to be completed. “We are very cognisant of the FAZ constitution, which also relates to FIFA statutes. FAZ has a process which they follow, our role is not to INTERFERE in the operations of any association and its very clear….,” he said. It is not about how quick it is to the elections, there is a process that needs to be followed. Decisions are made not just because there is an election. Even after elections, there is a process that needs to be followed. So whether its the elections or after, as long as processes have been followed to the letter, a decision can be made and implementation can be done,” he said.”
With this triangulation and confirmation, we can close this chapter of National Sports Council of Zambia.
Of the three clients of Mosho and Phiri, one has basically lost his case and we are remaining with two. I feel my readers on this one I have not let you down and I have been on top of things.
For the other two clients, we have Kalusha Bwalya at CAS and his case will gain momentum this week. You will recall my dear reader that I predicted no action from CAS last week – and so far I have been correct – and that a decision will be made this week. I postulated that the decision is likely to not give Kalusha relief stopping the FAZ elections based on Past precedent. I also said the decision may ask Kalusha to pay the deposit on costs within a given time-frame. I am not sure how the decision on using Swiss Law vs FAZ Law will go and on that one I had guess. If I am forced to guess, I think the court will find for Kalusha and approve the use of Swiss Law which will be a big boost for him because his CAS depostion is well argued with a litany of cases, citations and logic.
The last client of the lawyers in Damiano, this one is the one likely to cause a FIFA ban if the courts decide not to vacate the order as will be prayed by FAZ tomorrow. There is another twist to this case as Damiano and Lusaka seem not to have loci standi in the case after all as new details have emerged and been availed to me this evening. I will talk about Damiano and possible twists tomorrow morning before court opens to avoid posting to many things this evening and to give you guys to digest what I have posted tonight.
Related to this case, It is possible also that courts may issue gags on people like me not to comment on the merits or demerits of the case. However it will be shameful for lawyers to try and shut us up. Lawyers should allow us to debate this issue as empowered by our freedoms of speech and freedoms of association as enshrined in Part III of the Zambian Constitution in the Bill of Rights. But to avoid contempt, I shall post in the morning before courts open.
Meanwhile, it is my view that, so far, Mosho and Phiri have done a great job for their clients and they will be worth every coin that they will charge. There letters and arguments are what I would want my lawyers to put across. Sometimes cases are lost on the strength of the case not on the effort by the lawyers. As for Kalusha, the failure of the case may end up being more of strategy in the period between the time FIFA reduced his sentence to end of last year. It wont be because of what he has done between the day of nominations to now. The men have fought. His lawyers have fought. His communication could do with a little more boost and force especially on the nitty-gritty on issues. Propaganda will excite already decided supporters but won’t win the undecided voters and the general public.
DISCLAIMER: Well, this is my personal opinion and I am not a lawyer. But for the record, I was a Sports Development Committee member at National Sports Council of Zambia from 2007 to 2016. I served under National Sports Council of Zambia chairmen like Dr Julius Sakala, Chifumu Banda, Mwamba Kalenga and others. I am also a commentator in this matter but am not campaigning for either Kalusha or Kamanga but campaigning for my future career in football management.