Athletics Kenya leaders led by its President Jackson Tuwei have suffered a major blow after the High Court ordered them to vacate office with immediate effect.
In a judgment delivered on Thursday, March 7, 2024, Milimani High Court Judge Lawrence Mugambi ordered all the officials and Executive Committee of Athletics Kenya who have been in office for 8 years to leave office after a successful lawsuit by athletes led by Moses Tanui, Wilson Boit and Mary Chemweno.
"An order is hereby issued that by dint Sections 46 and 49 of the Sports Act and the Second Schedule thereof, the officials and Executive Committee of the 1st respondent(Athletics Kenya) who have been in office for a cumulative period of 8 years since the coming into force of the Sports Act have served their terms in full and must forthwith vacate office. They shall be ineligible to contest for any position in the organization," Judge Mugambi directed.
Also Read:
In his decision, the judge has also ordered Athletics Kenya, the national athletics governing body to conduct fresh elections in compliance with the Constitution of Kenya and the Sports Act and barred all the current officials under the leadership of Tuwei not to participate in the polls.
While calling for new elections of the federation officers and the Executive Committee, Justice Mugambi concurred with the ten athletes namely Moses Tanui, Julius Korir, Julius Kariuki, Christopher Kosgei, Wilson Boit, Susan Sirma, Leah Malot, Nixon Kiprotich, Hosea Kogo and Mary Chemweno that the serving officials are not eligible candidates having been office since April 17, 2013, when AK held its last elections.
Further, Justice Mugambi ordered Athletics Kenya to carry out a further review of its Constitution adopted and or ratified on April 27, 2016, within the next 90 days since the earlier constitutional review process which was set in motion by the federation was flawed as proper public participation was not adhered to.
"An order is hereby issued directing Athletics Kenya to carry out further review of its Constitution adopted and/or ratified on April 27, 2016, within the next 90 days of making this order with a view to considering public views gathered during its last review for purposes of enhancing inclusivity, democratic representation of various players in the athletics discipline into the 1st Respondent’s top decision-making organ and to guarantee enhanced transparency in areas of concern raised by the public/stakeholders," the judge stated.
On registration of a member of the Federation, the Judge stated that since the Sports Act confers Athletics Kenya monopolistic status as the only registered National Sports Organization in the athletics discipline, it has a duty to the public to conduct its affairs having due regard to public interest and as per Article 10 (2) of the Constitution and Section 46 (6) of the Sports Act.
The decision by the court comes after ten top former Kenya athletes accused the AK officials of undemocratically proceeding to adopt the amended constitution at its Annual General Meeting held on April 27, 2016.
The petitioners informed the court that in November 2015, the AK commenced the process of reviewing its constitution so that its provisions can be compliant with the Constitution of Kenya and the Sports Act.
"This process involved a number of meetings held to discuss the amendments to the constitution. The main one was an Annual General Meeting (AGM) scheduled to take place on April 27, 2016, which approved the constitution on that very day, " the ten told the judge.
The former constitution had been enacted under the Societies Act prior to the enactment of the Sports Act, 2013.
They argued that the decision taken to amend the AK’s constitution was null and void for it was in breach of the Constitution and the Sports Act.
The ten athletes also argued the constitution under which AK is to be registered can’t be made through amendment of its existing one but a completely new one has to be put in place.
They contended that its constitution having been enacted under the Societies Act could not be amended to bring into line with the Sports Act.
They asserted that under Sections 46 and 49 of the Sports Act as read with Articles 10, 36 and 81 of the Constitution, the AK’s members and leaders registered and elected under the Societies Act, had no right or power to amend their constitution in line with Section 46 of the Sports Act.
In respect of clause 45 in the AK’s constitution, the ten asserted that the constitution can only be altered by a special resolution passed at an AGM.
"This clause is deemed to be restrictive, narrow and not democratic. This is because the same does not include the views and concerns of other stakeholders in the industry, only views of persons who are members," they argued.
Additionally, they stated a breach of the principle of involvement and consultation as provided in Articles 6 and 81 of the Constitution because the AK’s constitution should be amended by all members of the Federation as drawn from the 47 counties.
They accused the AK officials of initiating the amendment process stating that they violated their rights protected under Articles 10, 21, 27, 28, 35, 36, 47 and 50 of the Constitution which requires that all national sports organizations registered under the Sports Act be open to the public in terms of leadership, activities and membership.
"The Registrar of Sport and the Attorney General failed to comply with their duty under clause 21 that requires the rights of the stakeholders particularly the athletes are respected, protected and promoted in the establishment, management, operations and governing organs in the industry," the petitioners argued.
They contended that the amendment of the repealed constitution was an illegal scheme by the AK to re-launch the repealed constitution and maintain the status quo.
The ten athletes had urged the court to intervene stating that there is a high likelihood to register AK under the Sports Act based on a constitution that neither reflects the views of major stakeholders, particularly athletes.
"Unless the constitutional review process is stopped, they stand to lose a once-in-a-lifetime chance to democratise the federation and make its governance accountable," the petitioners had contended.
AK through its President Tuwei had opposed the case stating the affairs of the federation are regulated by its constitution.
Tuwei told the judge that upon enactment of the Sports Act, 2013, all sports organizations were required to register under the Act and thereafter be issued with a Certificate of Registration.
In an affidavit filed in court, Tuwei stated that in compliance AK lodged its application on July 20, 2014.
"Following this, AK embarked on the process of amending its constitution to be in line with the Constitution and the Sports Act," Tuwei stated.
He told the court that the petition by the ten athletes was filed in bad faith and geared towards sabotaging its affairs.
"This is because first none of the petitioners submitted or tried to submit their views and comments during the public participation process," Tuwei said.
Additionally, he avered that AK's membership is open to all Kenyans yet the petitioners who are former athletes have chosen not to register as members.
Historically, athletics in Kenya has been governed by AK-which is a federation affiliated with the International Association of Athletics Federations.
Following the promulgation of the new constitution, parliament passed the Sports Act, whose objective is to harness sports for development.
