Kenya: Autonomy of the National Olympic Committee and the legal consequences of government interference

by Elvis Majani[1]

 

Background

It is widely accepted that the National Olympic Committees (NOCs), all over the world, derive their functions, missions and powers from the Olympic Charter (OC)[2]. As with any other sports federation, the OC advocates for the independence or autonomy of NOCs, especially from government interferences, and promotion of ethics and good governance in sport. Central to this idea, the Kenyan government, through the Sports department and Parliament, established the Sports Act 2013, with the sole purpose of regulating sports organisations and federations in Kenya. The NOC of Kenya, Football Kenya Federation (FKF), Athletics Kenya (AK) and Kenya Basketball Federation (KBF) are among the national sports organisations that the government intended to promote good governance from within through this Act.

After the successful completion of the Rio 2016 Summer Olympics, there were complaints, from the general Kenyan public and others, about the mismanagement of Team Kenya at the Olympics. With this in mind, the Kenyan Cabinet Secretary for Sports and Culture (CS Sports), on 25 August 2016, finally bowed to public pressure, and took the bold step of disbanding the National Olympic Committee of Kenya (NOC-K), for what has come to be known as the “Rio Fiasco”.

The particular allegations included mismanagement of kits and poor accreditation of athletes and the travelling party. In the wake of all these complaints, and in the interest of the public, the CS Sports, citing the “powers” conferred on him by the Sports Act 2013, disbanded the NOC-K, and tasked Sports Kenya with the immediate performance of the duties of NOC-K, including organising and setting a date for the next elections.[3]

This article seeks answers to the following questions:

a  What do the actions by the CS-Sports amount to and the legal consequences of them?

b  Has the CS-Sports the powers to disband NOC-K?

c  To what extent can governments work with the NOCs without the presumption of interference, putting the issue of the disbandment of NOC-K in focus?

 

What do the actions by the CS-Sports amount to and the legal consequences of them?

The CS-Sports, upon dissolution of NOC-K, did appoint Sports Kenya[4] to manage its affairs, which is a clear indication of government interference. A reading of the powers and functions of this body clearly show the interference expected from the CS-Sports whilst acting as a government official. It is a fact that NOC-K falls under the category of “National sports organisations” “which includes an umbrella body responsible for Olympics, non-Olympics, Paralympics or deaflympic sports or multi-sport organisation responsible for all sports disciplines or recreational bodies or body responsible for a particular sport nationally”[5] that may justify the interference.

This action, however, does amount to government interference with the autonomy of NOC-K, which is a violation of the Olympic Charter. The Charter does accept some reasonable facilitation of sports activities, but prohibits interference. Art. 27 (5, 6 and 9) allows for collaboration with the government, but is strongly opposed to interference from the government. It provides:

In order to fulfill their mission, the NOCs may cooperate with governmental bodies, with which they shall achieve harmonious relations. However, they shall not associate themselves with any activity which would be in contradiction with the Olympic Charter. The NOCs may also cooperate with non-governmental bodies.”[6]

However, sub article 6 of art. 27 is strongly opposed to any kind of interference:

The NOCs must preserve their autonomy and resist all pressures of any kind, including but not limited to political, legal, religious or economic pressures which may prevent them from complying with the Olympic Charter.[7]

It is through the lenses of this article that it can be concluded that the actions by the CS-Sports did amount to government interference, which is prohibited by the Charter.

 

Has the CS-Sports the powers to disband NOC-K?

The CS-Sports claimed to have invoked provisions of the Sports Act 2013 to disband NOC-K. Section 54 provides for intervention by the Cabinet Secretary in management and states in brief:

 

Where a sports organisation fails to comply with the recommendations of an inspection, the Cabinet Secretary may appoint any person or committee to assume the management, control and conduct of the affairs of a sports organisation, remove any official of a sports organisation who, in the opinion of the Cabinet Secretary, has caused or contributed to any contravention of any provision of this Act, or any regulations or directions made thereunder or to any deterioration in the financial stability of the sports organization or has conducted himself in a manner which is detrimental to the interest of the relevant sporting discipline, or which has brought the sporting discipline into disrepute”.

It is clear from the wording of this provision that interference can only be made once certain allegations have been determined after a certain process; the same was not the case in NOC-K, and no inspection was referred to in the process of disbandment. Therefore, the actions by the CS-Sports do amount to government interference. As much as the CS-Sports does have powers to interfere with the management of sports organisations, this power is limited. The decision to disband was, therefore, ultra vires and hence amounts to government interference.

It is noteworthy that, to ensure that sporting activities are facilitated by the government, it is accepted that certain procedures for registration of sports organizations are followed.[8] This is to ensure that the mission of NOCs[9] and the functions of government do not conflict; both want to ensure promotion of principles and values in sports. In this case, the disbandment of NOC-K fails to promote the said mission of the charter and amounts to government interference.

 

To what extent can governments work with the NOCs without the presumption of interference and the issue of autonomy?

As demonstrated above, whereby the government performs the below functions, there is a presumption that such will not amount to government interference and autonomy will be maintained, because the government is working within the limited mandate:

a  promote, co-ordinate and implement grassroots, national and international sports programmes for Kenyans, in liaison with the relevant sports organizations;

b  establish, manage, develop and maintain the sports facilities, including convention centers, indoor sporting and recreational facilities;

c  establish and maintain a sports museum;

d  participate in the promotion of sports tourism;

e  facilitate the preparation and participation of Kenyan teams in various international events and the hosting of similar events in the country and recommend members of steering committees for international sports competitions, in consultation with the relevant national sports organisations.

The above list is not exhaustive; however, the act should be seen as one that promotes sports and not hampering its development.

In the case of NOC-K, which is a private organisation created and affiliated to the IOC, government interference is not required in the running of its affairs. The decision by the CS-Sports, therefore, affects the autonomy of the organisation.

 

What then amounts to interference by the government?

Interference is inextricably linked to the concept of sports autonomy.

It can be described in the following terms: the legal autonomy of a sports organisation can be defined as the private autonomy of the organisation, to adopt rules and norms that have a legal impact, in a legal framework imposed by the State, be it at national or at international level.[10]

Sports autonomy is, therefore, a broad concept which requires that the affairs of sports organisations be run without interference from governmental or non-governmental bodies, which interference might be political, religious, economic, judicial or otherwise.[11] Interference in the management of sports organisations by governments and courts has often seen several federations suspended by their umbrella bodies from participating in their respective sports.[12]

The principle of autonomy of sport is a universally accepted principle that cuts across all sports and is widely embraced as forming part of the distinct body of law called “lex sportiva.[13] The situation is no different in the case of the Olympic Movement. This is a movement with various stakeholders, including the International Olympic Committee at the apex; international federations; national federations; National Olympic Committees; and organising committees for Olympic Games.[14] The International Olympic Committee (IOC), at the apex, is in charge of the Olympic Movement and determines which games are to be played in the Olympics[15] depending on the accreditation of the statutes of the various international federations.

The IOC, therefore, admits, as its members, international federations, but not before it has checked, for compliance with the Olympic Charter, the statutes of the international federations. Such compliance is usually principally based on issues such as whether or not the statutes of the federations allow for sports dispute resolution through recourse to ordinary courts of law and whether or not they recognise the Court of Arbitration for Sport as the apex dispute resolution body.

National Olympic Committees work with national federations whose international federations have been accredited by the IOC. Their duties are to recognise only one national federation in respect of every sport that is to be played at the Olympics and cooperate with the federations in facilitating the appearance of the federation’s team in the Olympics, subject to qualification. It has to be remembered that the sole duty of organising the representation of the national team at the Olympics is that of the National Olympic Committees and not that of the various federations.[16]

 

Possible consequences

The Olympic Charter does provide in art. 27 that the IOC Executive Board may suspend or withdraw the membership of an NOC for government interference.

When the membership of such an NOC is withdrawn, the NOC has to stop the said interference in order to be re-admitted and, whilst suspended, the NOC is not entitled to any funding from the IOC. For example, in October 2015, the membership of the National Olympic Committee of Kuwait was withdrawn for interference, meaning that Kuwait could not participate in its own right in the Rio 2016 Summer Olympics.[17] The national government of Kuwait had enacted several laws that were deemed, by the IOC, to interfere with the autonomy of the various sports federations. The Kuwait government has, accordingly, decided to amend the said laws and restructure its various federations in line with the Olympic Charter.[18]

The partnership that exists between NOCs and the national federations representing the various sports has been noted. Sports, like football, volleyball and athletics, are some of the sports represented at the Olympics. As noted above, the sole responsibility of organising the representation of a national team at the Olympics lies with the NOCs.

The national team representing a country at the Olympics may, therefore, contain representatives from the various sports and federations that the country has, by way of merit, qualified for. If an NOC is suspended or its membership withdrawn, the consequences are that the country will not be represented in the Olympics in any sport until compliance with the Olympic Charter is achieved. The various federations will, however, not be affected, if they are in compliance with the statutes of their international federations.

 

Conclusion

The autonomy of the NOCs is to be stressed and protected from political and government interference, in order to fulfill their roles and functions as required by the Olympic Charter. In the present case, noting the impact of the CS-Sports decision, the IOC has offered to mediate the dispute between NOC-K and the Sports ministry, to repair any damage and avoid any consequences. It is the desire of all for there to be an amicable settlement of the situation – within the shortest possible time.

 

[1] Advocate of the High Court of Kenya, sports lawyer, director at the Centre for Sports Law and partner at Wambilianga, Majani & Associates (WMA).

[2] International Olympic Committee, Olympic Charter, available at https://stillmed.olympic.org/media/Document%20Library/OlympicOrg/General/EN-Olympic-Charter.pdf#_ga=1.26234238.2122458293.1480245465 (accessed on 26 November 2016).

[3] https://citizentv.co.ke/sports/nock-disbanded-by-sports-cs-hassan-wario-138535 (accessed on 26 November 2016).

[4] Republic of Kenya, Sports Act 2013, sections 4, 5 and 6 (Government Printers).

[5] Ibid., section 2, on “Interpretation”.

[6] See (note 2), art. 27(5).

[7] Ibid., art. 27(6).

[8] See (note 4), section 45, 46 and 47 on establishment of the office of the Sports Registrar, procedure to register sports organisations and issuance of the certificates of registrations.

[9] See (note 2), art. 27 (1 and 2).

[10]See Michaël Mrkonjic, “Sports organisations, autonomy and good governance” (2013) Play the Game/Danish Institute for Sports Studies 135.

[11] Kilili Nthiw’a, Autonomy of Sport: The Role of National Courts in Sports Dispute Resolution, 2015, LL.B Dissertation, unpublished. See also Farai Razano, “Keeping Sport Out Of The Courts: The National Soccer League Dispute Resolution Chamber – A Model For Sports Dispute Resolution In South Africa And Africa”, in: African Sports Law And Business Bulletin 2/2014.

[12] FIFA, the world’s governing body for association football, futsal and beach football, has been notorious in cracking the whip in respect of sports bodies that do not discourage government interference. The Nigerian Football Federation, the Kenyan Football Federation and the Kuwait Football Association are some of the federations that have, in the past, been banned by FIFA for alleged government interference.

[13] Kenneth Foster, “Is There A Global Sports Law”, in: Entertainment and Sports Law Journal 2, no. 1 (2003).

[14] www.olympic.org/about-ioc-institution (accessed on 26 November 2016).

[15] See Sagen v. Vancouver Organising Committee for the 2010 Olympics and Paralympics winter games, 2009, BCSC 942, where some female ski jumpers challenged the Committee for enforcing the decision of the IOC to prevent them from competing in the Olympics.

[16] See (n4).

[17] Kuwait’s 9 qualifying athletes had to compete under the Olympic Flag at the Rio Games.

[18] www.insideworldfootball.com/2016/06/17/another-kuwaiti-goal-government-edge-dissolving-sports-bodies/.