By Shalala Oliver Sepiso
A quick check in the 2019 Football Association of Zambia (FAZ) Constitution (as amended in 2019) shows that the FAZ elections can still go on without the Electoral Commission of Zambia (ECZ) officials who have since been withdrawn from FAZ.
On Friday, ECZ Chief Electoral Officer Kryticous Patrick Shindano withdrew the four ECZ officers sitting on the FAZ Electoral Committee leaving the situation dicey ahead of the up-coming FAZ elections.
In a crisp and poignant letter hereto attached, the former Civil Society for Poverty Reduction (CSPR) Executive Director said “In view of the impending court case in which the court has decided to stay the Football Association of Zambia (FAZ) electoral process and elections, please be informed that the Commission has with immediate [effect] decided to withdrawl (sic) the following ECZ officers from the FAZ Electoral Committee with imeediate effect: 1. Mr Steve Nyondo 2. Mr Alistair Kaleji 3. Mr Bazala Mseteka, and 4. Mr Christopher Munachuka.”
With these withdrawn, there appears to be both a legal conundrum on how to proceed and dicey situation in court where the four have been cited for contempt and bench warrants have been issued.
I can’t comment on the bench warrants and merits of the self-same as that is contemptuous and I am a person who respects laws of the country and of institutions as well as knows some of our jurisprudence. But I will just report what the four told the court through their lawyers that they were not served the court summons. The four are civil servants who don’t operate from Football House but from ECZ House on Haile Sellasie Avenue – not the other ECZ House near InterContinental though. It is said that Damiano served only the FAZ secretariat who, practically and legally, couldn’t serve the others cited in the summons.
Irrespective of their arguments, they might be found guilty and then have a criminal record on their backs if the court deems the contempt criminal. Sometimes in civil matters contempt may be deemed “not criminal”. That is for another day. Either way, because of these legal landmines, ECZ has withdrawn their officials. It is is not clear if the court will now discharge them from the lawsuit or it will continue since the acts where committed before the withdrawal.
Coming back to be seemingly large chasm of their leaving which looks like a constitutional crisis, my earlier articles shows that elections can still be held without these officials. This will be based on both Article 79 of the 2019 FAZ Constitution (as amended in 2019) or Article 3 of the Transitory Provisions in the same constitution.
Article 3 of the Transitory Provisions reads: “All provisions of these Statutes shall become enforceable immediately upon its adoption though the Executive Committee shall have the discretion to make such modifications, adaptations, and exceptions as may be necessary to bring all the provisions of these Statutes into effect. In particular, the Executive Committee shall only be allowed to exercise its discretion in relation to the provisions of these Statutes that shall be impractical to immediately implement pending setting up of the appropriate structures as provided by these statutes.”
So the provision for ECZ officials in the Electoral Committee can be waived by the FAZ Executive Committee in the meantime using this article and the composition can be redone legally. After the election, when the transitory provisions fall off, this wont be possible.
Article 79 of the 2019 FAZ Constitution (as amended in 2019) which provides for powers of the Executive Committee in the face of force majeure or unforeseen contingencies. Article 79: Unforeseen Contingencies and Force Majeure, found in PART VIII: FINAL PROVISIONS, reads: “The Executive Committee shall have the power to decide on all cases of force majeure and on al matters not provided for in these statutes, such decisions to be made according to the rules of justice, taking into account the relevant regulations of FIFA and CAF.”
Again, this was used when postponing the FAZ AGM indefinitely due to the COVID-19 threat. It can now be used to have elections without ECZ officials provided this withdrawal can be defined as force majeure or Unforeseen Contingencies.
The involvement of ECZ is not unique. FAZ works with other institutions in government and outside government. For the lawyers of in the current FAZ Ethics Committee, FAZ asked the Law Association of Zambia (LAZ) to give it a reference as to the suitability of the appointees. Likewise for the accountants, FAZ asked Zambia Insitute of Chartered Accounts (ZICA) to confirm suitability of the appointees to sit on the FAZ Audit Committee. I will also add that it is not uncommon for the Auditor General’s office to audit FAZ since it receives GRZ grants from time to time.
So the FAZ Executive Committee may wait for tempers to cool down and ask ECZ to allow the officers to continue with the elections or it may have to look to NGOs, CAF and FIFA to provide elections monitors and indeed officials to manage the elections. NSCZ also has mandate to manage elections in case of a vacuum.
In ending, I wish to say I have heard your complaints on the length of these articles. However, these are features not news flashes and they are usually posted one per day. I don’t see why, for the love of the game, we cant read despite the length. I avoid splitting the topics into many stories because then we lose each other. That is why I put everything in one article whether court, CAS, NSCZ etc.
Meanwhile Blackwell Siwale in The Mast of today proves my point about camps. And why we need reconciliation. He also approves my idea of a reconciliation committee. And the need for dialogue. Some people are reading to the very end of these articles.