Football Association of Zambia general secretary Ponga Liwewe’s statement on the decision by the Court of Arbitration in Sport to refer the case of expelled vice-president Richard Kazala back to the body’s supreme decision-making organ also known as the FAZ council should ordinarilly pass without comment, but not when the explanation attracts more questions than answers.
It’s difficult to believe that such statements would be attributed to the office of the General Secretary at Football House. Equally difficult is taking a silent posture in the wake of such irregularities hence my attempt to give an alternative perspective.
Just in case we missed out, here’s what Liwewe said as published by the Zambia Daily Mail of January 10, 2017
“Right now we are very busy dealing with CHAN [African Nations Championship]. Once the team leaves, we will sit to deal with all these issues. All I can say for now is that the legal committee will study the matter.”
Liwewe’s statement follows the decision of CAS in a Consent Judgment delivered on October 30, 2017. CAS set Kazala’s expulsion aside and gave him an opportunity to be heard by the FAZ council.
FAZ president Andrew Kamanga, Liwewe and the head of the legal committee were party to the CAS settlement.
CAS under the auspices of an arbitrator identified as Mark Hovell established that FAZ neglected to apply the principles of natural justice in arriving at the decision to suspend and expel Kazala and Blackwell Siwale from the Executive Committee.
Consequently, CAS determined that case be referred back to the FAZ council to give the appellant a fair hearing.
In addition to affording Kazala an opportunity to respond to the written charges, FAZ consented to instructions for the former sports deputy minister to be heard at the March 2018 annual general meeting as outlined in parts 5 & 6 of the judgment.
Yet the impression created by the FAZ GS is that Kazala is at the mercy of the FAZ legal committee. This is contrary to the directive by CAS.
In fact, the judgment indicates that any dispute arising from the arbitration remains under the jurisdiction of CAS.
Part 11 states of the judgment states, “in the event of breach of this agreement, the parties agree that the CAS shall retain jurisdiction to deal with any such dispute.”
The express instruction referring the case the FAZ council is in part 6 provided both parties fulfill part 4 & 5.
In part 5, Kazala was instructed to respond to the charges within 28 days (that’s assuming the FAZ president/secretariat provided him copies of the charges per part 4 within 14 days of the judgment) and was expected to reply using courier to the GS.
Further, part 5 of the judgment places a duty on the GS to assign Kazala’s slot a place on the agenda for the AGM and a portion of it reads, “…..in furtherance of his right to speak in his own defence, produce his response to the charges and any supporting evidence by courier to the General Secretary of the Respondent, who in turn, shall include the same with the AGM agenda.”
Part 6 of the judgment is could not have provided any more clarity than stating, “the Council shall consider the motion to dismiss the Appellant from the Executive Committee of the Respondent at the March 2018 AGM.”
So, why should a decision of an appellant body be subjected to an administrative organ of FAZ such as the legal committee?
At any rate, the FAZ GS should know that a decision of CAS cannot be subjected to the legal committee unless there is an expresses instruction to do so.
And the express instruction has been given in part 8 to apply to Siwale’s case. Note that Siwale appeared before CAS as Kazala’s witness – the more reason his situation is left to the discretion of the FAZ executive committee in consultation with the legal committee.
But has FAZ met the pre-condition of the Consent Judgment in addressing Siwale’s matter? The answer is no.
Here is why. Part 8 reads, “The Executive Committee of the Respondent shall within 21 days consider with its Legal Committee it is able to afford a like right to be heard in his own dismissal case under Article 37 of its Constitution to Mr. Blackwell Siwale.”
Going by Liwewe’s recent sentiment, the FAZ executive and legal committee did not address Siwale’s issue within the stipulated period.
If the FAZ Executive Committee and the legal committee did not consider Siwale’s case within 21 days, they are in default of the judgment.
What the CAS decision has shown is that Kazala, no matter how one likes or dislikes him, was not fairly treated and retains his right to be heard. So, dragging the issue through the legal committee is not in the best interest of justice.
In any case, the legal committee chairperson Sokwani Chilembo was part of the proceedings that have now resulted into the intervention of the CAS.
Put mildly, Chilembo misdirected himself and misled the council as a lawyer when he looked elsewhere as the rules of natural justice were butchered.
What justice can Kazala and Siwale expect to get from the same legal committee that was party to creating this confusion? Does Liwewe actually realise that what CAS has done is to overrule the decision of the very legal committee he is now trying refer this to? What new things would he and his committee bring to the table if not wasting time and resources?
The FAZ GS will do well to consult article 65 (2) of the FAZ constitution which demands full compliance of any decision passed by CAS. Therefore, any attempt to disregard or circumvent the instructions of the judgment by the secretariat is contemptuous.
The right thing to do for FAZ is submit the judgment before a properly constituted FAZ council to hear the appellant.