No football dispute in court: a cardinal rule

Malawi football faced a test of character over the weekend after Football Association of Malawi (FAM) elections were halted by an injunction.

But thanks to High Court Judge Kenyatta Nyirenda’s landmark ruling which threw out the injunction that will go down in history as having prevented a catastrophe from befalling Malawi football as world football governing body Fifa was keenly watching with vulture’s eye.

It all started with aspiring candidates Wilkins Mijiga and Willy Yabwanya Phiri and vice presidential race hopeful Tiya Somba-Banda complaining to the appeals committee that there were irregularities in the run-up to the polls.

Mijiga, Somba-Banda and Yabwanya Phiri complained that the electoral committee led by Dingiswayo Madise had flouted several articles of the electoral code.

In the complaints, the trio’s lawyer Lusungu Gondwe stated: “Our Clients’ view is that at the barest minimum the list of 36 delegates [which originates from all the affiliates] must be ready at least 15 days before the general assembly. This is a clear statutory position in the FAM Statutes. This has not been complied with. The result is that you will proceed with the elections with delegates nominated in serious breach of FAM Statutes.

“With due respect, our Clients believe the electoral committee must revisit its interpretation of Article 22 (5) as read together with Article 22 (3) of the FAM Statutes. Article 22 (3) only proves that a particular delegate appears on the list of 36 delegates required under Article 22 (1) which list had been compiled at least 15 days before the general assembly pursuant to Article 22 (5) of the Statutes. Article 22 (3) says nothing more than just that.

“Violation of 22 of the FAM Statutes wrecks obvious prejudice to our Clients. They do not know the electorate. In other words, you have concealed the identity of the electorate. This is serious contravention of norms and best practices relating to conduct of elections.”

The complaint warned of a legal action in case the grievances were not addressed.

“Our Clients demand compliance with Clause 22 of the Statutes. Inevitably, this will entail that affiliates comply with Article 22(5) of the FAM Statutes. In other words, the identities of the delegates (names and photos) be known at least 15 days before the General Assembly.

“Our Clients demand to be notified of compliance with the FAM Statutes by 1200 hours on Thursday, December 10, 2015,” the appeal read in part.

In response, the FAM appeals committee, chaired by Justice Lovemore Chikopa, ruled in favour of the trio.

“That there was no compliance with Article 22(1) as read with 22(5) of the FAM Statutes to the extent that it has not been shown that the general secretariat of FAM received a list of names from affiliates pursuant to Article 22(1) comprising 36 names of General Assembly delegates.

“The appeals committee, in order to maintain the integrity of processes of the FAM elections, hereby directs that the election only proceeds upon compliance with Article 22(1) and (5) of the FAM Statutes,” the ruling read in part.

However, FAM after consulting Fifa envoy Alexander Glos, overruled the appeals committee ruling as invalid since it was convened without a quorum since only Chikopa and Patrince Nkhono were in attendance without the third member George Bakuwa.

Following FAM’s decision to overrule its appeals committee ruling, the trio’s lawyers went on with their threat and obtained an injunction which Judge Kenyata Nyirenda granted, restraining the polls from taking place.

Briefing the assembly on Saturday, legal adviser Jabbar Alide explained that the association’s lawyers were challenging the injunction and that if they fail, Malawi risked being banned by Fifa.

Alide said either the court should vacate the injunction because football issue cannot be settled in civil courts or else Malawi would be banned by Fifa.

After 10 hours of uncertainty, sanity returned after Judge Nyirenda vacated the injunction that had held the general assembly in suspense following inter-parte hearing.

In his ruling the Judge acknowledged the Fifa Statutes which provides legal organs for settling disputes.

“The judge ruled that the matter was brought before the High Court prematurely,” said FAM lawyer Wapona Kita.

But the injunction will likely have far reaching consequences.

Those that would in future wish to take football matters to court, will think twice before doing so as the rule that such disputes cannot be settled in court remains sacred. n